👋 Now Accepting New Publishers
The following are the terms and conditions governing your (hereinafter “Publisher”) relationship with Naxos, LLC (hereinafter “Naxosads”) and the use of the Naxosads website (hereinafter “Site”). Publisher agrees to use the Site and any additional services offered by Naxosads only in accordance with these Terms and Conditions. Naxosads reserves the right to make changes to the Site and these Terms and Conditions at any time. Publisher’s continued use of the Site after any such modification and notification thereof (which maybe provided by e-mail to the email address provided in the course of Publisher’s registration with Naxosads) shall constitute Publisher’s consent to such modification.
1. Approval of Publisher.
Registration with Naxosads shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Naxosads on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the Naxosads publisher lead generation program is subject to review and approval by Naxosads. All prospective publishers need official approval from Naxosads before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfillment of said criteria. Naxosads reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. Failure of the Publisher to observe the terms and conditions of this Agreement will disqualify Publisher from participating in the Program. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by Naxosads. Publisher shall promptly notify Naxosads in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by Naxosads, at any time for any reason.
1.1. Minimum Eligibility Requirements.
In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (collectively the “Media”) must meet the following criteria, at a minimum:
All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation:
(i) Member opt-in date
(ii) Registration source
(iii) First name
(iv) Last name
(vi) Email address
(vii) Any other information collected and will supply such records to Naxosads within one business days of request thereof;
Unless otherwise approved in writing by Naxosads, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
Publisher websites must be fully functional at all levels; no "under construction" sites or sections;
Publisher’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003
Spawning process pop-ups are prohibited; and
Such other criteria as Naxosads may from time to time determine, in its sole discretion.
1.2. Publisher Website Content.
The content of Publisher’s Media shall be subject to Naxosads’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:
- Pornographic material, including any material appealing to the prurient interests
- Racial, ethnic, political, hate-mongering or otherwise objectionable content;
- Investment, money-making opportunities or advice not permitted under law;
- Gratuitous violence or profanity;
- Material that defames, misrepresents, abuses, or threatens physical harm to others;
- Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
- Software Pirating;
- Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
- Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
- Any illegal activity whatsoever; and
- Links to any affiliate networks
2. Use of the Site.
2.1. The Site allows Naxosads to post offers of advertising programs sponsored by Naxosads or its affiliates on the system ("Program(s)"). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) ("Ad") on Publisher’s Media. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Naxosads, result in termination of Publisher. Naxosads may change a Program at any time, upon reasonable advance written notice to Publisher. Naxosads is responsible for displaying and administering all active Programs and tracking the payments owed.
2.2. Special Rules Governing Email Campaigns.
2.2(b). Publisher may not use an advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission.
2.2(c). No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
2.2(d). Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. Publisher may only use approved Subject Lines available provided by Naxosads or Subject Lines for which Publisher has documented approval from Naxosads.
2.2(e). Email Ads Must Contain Clear Identification. Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means, for example, by stating in the message body “This advertisement is brought to you by (Your Company)”. Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.
2.2(f). Effective Method of Opting Out of Future Mailings. Senders of commercial emails must give recipients an effective means of requesting not to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt out via postal letter and provide a functioning unsubscribe link that must remain in operation for 30 days from the date of the original email transmission.
2.2(g). All unsubscribe requests must be adhered to within 10 business days from their receipt. You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally.
2.2(h). No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or “scraping” websites or online services. Publisher must have full opt-in data for all recipients in its database.
Naxosads shall be constantly monitoring, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions, without limiting the generality of the foregoing:
3.1. All Publishers will be monitored by Naxosads (or a third party retained by Naxosads for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with Naxosads.
3.2. Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that Naxosads will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list.
Naxosads grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of Naxosads. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Naxosads, Publisher shall forfeit its rights to any amounts owed by Naxosads to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Naxosads. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Naxosads that allows Naxosads to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Naxosads hereunder or as part of the services hereunder is proprietary to and owned by Naxosads. If instructed to do so by Naxosads and/or if Publisher shall be terminated by Naxosads, Publisher will immediately destroy and discontinue the use of any Naxosads data, including Site Data, and any other material owned by Naxosads or the Advertisers.
Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of Naxosads’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Naxosads will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Naxosads Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Naxosads will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that Naxosads shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
6. Participation in our Program.
Naxosads shall provide Publisher with material to create a website for the purpose of search engine optimization, or Publisher can create its own website. In either event, no website shall be released online, and nonsubmission, inclusion or any traffic can be sent to it, prior to Naxosads’s review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to Naxosads’s review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by Naxosads directing traffic to product sales web pages served by Naxosads or a Naxosads Group Client. Publisher’s selection of entities to be included on any such website is also subject to Naxosads’s review and approval, of which shall not be unreasonably withheld. Should any of Naxosads’s Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sole property of Naxosads.
Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Naxosads’s written approval. Links must be served from the Naxosads server, unless otherwise permitted in writing by Naxosads. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by Naxosads, modify or alter Links or Tracking devices in the manner requested by Naxosads. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Naxosads in accordance with the previous sentence.
Naxosads owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. Naxosads may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of Naxosads. Naxosads may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Naxosads does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Naxosads. Should Naxosads choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Naxosads without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Naxosads in writing and only until Naxosads shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Naxosads to do so.
Naxosads actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things
Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Naxosads;
Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;
Have shown fraudulent leads as determined by the Advertisers;
Have used any incentives to procure clicks or leads
Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.
Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Naxosads or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Naxosads, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Naxosads, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, Naxosads reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
Publisher will be paid per the terms of each Program. Naxosads shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that Naxosads may, in its discretion, withhold payments until such time as the Advertiser has paid Naxosads for any Program. In addition to any other remedies that may be available to Naxosads, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Naxosads to Publisher. Naxosads reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Naxosads shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by Naxosads need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Naxosads will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Naxosads and payments made to Publisher shall be based on the Events as reported by Naxosads. Naxosads will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. Naxosads will require a Publisher to provide a W-9, and similar such information, as a condition to payment.
9. Special Terms for Co-Registration Campaigns.
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions shall apply:
9.1. Approval of Publisher’s Site(s).
No Program may go live until such time as Naxosads, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.
9.3. Scrubbing Leads.
Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Naxosads may detect and track all Invalid Leads, which are determined on a real-time basis. Naxosads shall only pay for leads deemed valid by this system. At the sole discretion of Naxosads, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher's inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a Naxosads Account Executive and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Naxosads Account Executive.
9.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Naxosads or its Advertiser. Therefore, other than providing the Leads to Naxosads for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in Naxosads or its Advertisers.
9.5. No Alteration of Approved Co-Registration Forms.
Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of Naxosads.
The initial terms of this Agreement shall be for one year from the date of its first execution by the last party to so execute. Upon the one year anniversary of the execution, this Agreement shall automatically renew for successive thirty (30) day terms, unless: (a) not less than thirty (30) days prior to the date of any such automatic renewal, a party notifies the other in writing that it does not wish to renew this Agreement; or (b) this Agreement is otherwise earlier terminated pursuant to the provisions hereof.
Naxosads reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason, upon written notice to Publisher. Upon removal of any advertisements, Publisher shall terminate the Program and immediately cease emailing and any traffic involved with removed advertisement(s). Naxosads also reserves the right to terminate Publisher’s access to the Site at any time without notice.
Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 12, 13, 14 and 15 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
12. Representations and Warranties/Covenants.
12.1. Mutual Representations.
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
12.2. Publisher Representations.
Publisher represents and warrants as follows:
Publisher’s Media is currently in compliance with all applicable laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the "CAN-SPAM Act");
Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
Publisher’s database consists of only permission based opted-in e-mail addresses; and
Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media.
12.3. Publisher Covenants.
Publisher covenants that it shall not:
send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails);
post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Naxosads;
promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
use the Site in any manner other than that which is specifically contemplated herein;
engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within Naxosads’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Naxosads. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, Naxosads will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher.; and
Publisher covenants that it shall:
Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
Provide within one business day after request therefrom, the IP Information, together with such other related information that Naxosads may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher.
Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Naxosads, result in the immediate suspension or termination of Naxosads’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Naxosads. The foregoing rights shall be in addition to any other remedies available to Naxosads. Publisher acknowledges and agrees that Naxosads shall not be responsible for the Advertisers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
14. Customer Information; Non-Disclosure. Confidentiality.
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Naxosads, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards.
All information provided to Publisher hereunder shall be kept strictly confidential.
15. Limitation of Liability; Disclaimer of Warranty.
Unless otherwise provided in this agreement, in no event shall Naxosads or any Publisher be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, Naxosads CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO PUBLISHER ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND Naxosads MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, and: (A) MERCHANTABILITY, CLIENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN, (C) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY’S “INFORMATION” (WEB SITE). ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
Naxosads makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith. Naxosads has no liability to Publisher for unapproved materials, including all copy, images, URL names, and search terms used by Publisher to promote the client partner. Naxosads makes no representations whatsoever about any other website which Publisher may access through the service. When Publisher accesses a website that is not associated with and independent from Naxosads, Publisher acknowledges that Naxosads has no control over the content of that website. Furthermore, a link to a non-Naxosads website does not mean that Naxosads endorses or accepts any responsibility for the content or the use of such website. It is Publisher’s sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such items as Trojan horses, worms, viruses, and other items of a destructive nature.
Publisher will defend, indemnify, and hold harmless Naxosads, the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of these Terms and Conditions or any Program Terms. Naxosads reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.
16.2. Notification of Legal Action
Publisher will immediately notify Naxosads of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
17. Force Majeure.
Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
18.1. Entire Agreement.
These Terms and Conditions, together with the terms for each of the Programs constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
18.2 Controlling Law
These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the United States and the State of Nevada, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located intbilisi Georgia (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
Publisher may not assign any of its rights hereunder without the prior written consent of Naxosads, which may be withheld for any reason.
In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms. 18.6. Relationship.
The parties agree that Naxosads is acting as an independent contractor in performing the Services and that the relationship between the Naxosads and Publisher shall not constitute a partnership, joint venture or agency. Neither Naxosads nor any of Naxosads’s employees or agents (collectively referred to herein as the “Employees”) (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. Naxosads retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither Naxosads nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
18.7. No Publicity.
Publisher may not make any mention of Naxosads or any Naxosads client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing Naxosads or any of its clients in your customer lists, without the written consent of Naxosads, whose consent may be withheld for any reason or for no reason.
Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Publisher at the address provided in the registration, and (b) Naxosads .
The following Terms and Conditions (the “T’s and C’s”), together with the insertion order (the “IO”), shall govern all advertising campaigns (“Campaigns”) that are conducted by Naxos LLC (hereunder "Naxosads"), for the entity identified on page one (1) of the IO and the signature page ("Company"). These T’s and C’s will govern any and all other IOs subsequently executed by Naxosads. These T’s and C’s supersede and replace any and all prior agreements entered into by and between Naxosads and Company pertaining to the subject matter hereof and shall control all extant IOs. Terms not defined in these T’s and C’s shall have the meanings set forth in the IO. All subsequently executed Insertion Orders and these T’s and C’s may be collectively referred to herein as the "Agreement"). This Agreement represents the entire agreement of the parties and may not be modified unless expressly agreed to in writing by both parties.
1. Advertising Services.
Naxosads will provide advertising services (collectively the “Services”), upon the terms and subject to the conditions that Naxosads may designate from time to time in an IO. All such Services shall be subject to these T’s and C’s. Naxosads shall perform the Services as described herein and/or may use a Network to perform such Services (the “Network”). The Network may consist only of the affiliated publishers (collectively the “Publishers”) that maintain their own proprietary websites, internet traffic and/or legal email databases derived from ordinary course activities as a publisher (i.e. no rented or shared databases)
2. Company’s Creative and Web Site
2.1. Creative. Company will provide Naxosads with the creative materials for the Ads and/or Campaigns, including product/service descriptions, graphic images, logos, and copy (the “Copy”), at least five (5) days prior to Naxosads’s posting of such Ads and/or Campaigns.
2.1.1. To the extent the Campaign involves E-Mails, the Copy shall also include subject and from lines, offer description (in text and html formats), a functional unsubscribe link, terms and conditions (if applicable), and any other information necessary to comply with all applicable state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003 (the “Act”). Company will submit changes or cancellations of any creative materials in writing to Company at least ten (10) business days in advance of requested change date.
2.2. License. Company grants Naxosads and its Publishers a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Company's name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize Ads on the Service, and on Naxosads’s web sites, and for the purpose of including Company in Naxosads’s marketing and promotional materials. Company further grants to Naxosads and its Publishers a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Company (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of all IOs then in effect.
2.3. Company Web site. Company shall make best efforts to keep the Company’s web site generally available 24 hours a day, 7 days a week, to ensure that a third party user’s purchase, registration, lead and any other action related to the Ad and/or Campaign (“User Action”) may be processed on a timely basis. Company must notify Naxosads at least one (1) week in advance for any scheduled downtime so that Naxosads has adequate time to notify Publishers who are actively engaged in running the applicable Ads and/or Campaigns.
2.4. CPA Tracking. With respect to all cost per acquisition ("CPA") and cost per lead (“CPL”) campaigns, Company will provide Naxosads with unique tracking links (URLs) that will record the origin of each user action including impressions, clicks and sales by unique tracking link. Company will allow Naxosads online access to the statistics regarding such User Actions by unique tracking link. Company will ensure Naxosads's tracking methods are in place and functioning at all times. Company will provide access to records as they become available that will allow Naxosads to monitor the volume of User Actions it has generated.
2.5. CPM and CPC Tracking. With respect to all other Campaigns, including cost per impression ("CPM"), cost per click ("CPC") and co-registration campaigns, Naxosads shall be solely responsible for calculating the user actions that comply with the terms of the applicable IO.
2.6. Suppression Lists. To the extent that Company receives, via E-Mail, website or other media, a message from a third party user that such user wishes to unsubscribe or opt out of receiving any Ads and/or Campaigns, Company is required to provide Naxosads with a suppression list of such opt-outs and unsubscribes (“Suppression List”) no more than forty-eight (48) hours after receiving such transmission from third party user. Naxosads shall make the Suppression List available to the Publishers in its network.
3.1. Payment Obligations. Company is obligated to pay Naxosads in accordance with the pricing specified in each I/O. If not specified otherwise, payment shall be prepaid before the start of the campaign and during the term of the campaign. Naxosads may invoice Company, but payment by Company is not contingent upon receiving Naxosads’s invoice. In the event Company fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted under applicable law, whichever is less. Company agrees that if Company does not pay within five (5) days after payment is due either Naxosads or its affiliates may seek to satisfy Company’s payment obligations and to collect such payment. Company further agrees to pay all costs of collection (including court cost and reasonable attorneys fees) incurred by Naxosads and/or its affiliates in connection with its enforcement of any Order. Unless Company objects to Naxosads’s invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Company may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Company intends to dispute an invoice, Company shall provide a written report to Naxosads, within two (2) business days identifying, in detail, the discrepancies, between the invoiced amount and Company’s evidence. Naxosads may consider such report, but shall have final authority in determining the correct amount.
3.2. Payment Records. Company shall insert tracking pixel on the confirmation page for each Ad to be delivered hereunder. Company will provide Naxosads with a link to the confirmation page where Naxosads can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on Naxosads’s calculations of the higher of number of leads from the Naxosads or Company statistics based on the tracking pixel. All such records provided by Company shall be the sole property of Company. In the event that the tracking methods employed malfunction or the Company web site is inoperable, for the period in question, a mutually agreed upon payment will be determined.
3.3. To the extent that payments are based on User Action, Naxosads may, in its sole discretion and if requested by the Company, transfer user action data that provides the basis for an invoice to Company.
3.4. Non-Viable Leads. Unless otherwise provided in the IO or Campaign Worksheet, no offsets or chargebacks may be taken for any non-viable or duplicate leads. Naxosads shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non-viable leads shall include, but not be limited to, leads with incomplete contact information (no e-mail address, no phone number, no physical address), leads from non-United States citizens, leads from consumers under 18 years of age, etc. It is the responsibility of the Company to insure that the IO or Campaign Worksheet accurately reflects the leads sought.
4. Term. Unless terminated earlier in accordance with Sections 8 or 13 below, the term during which Naxosads shall provide the Services shall be as set forth in the IO.
5. Representations and Warranties.
5.1. Company warrants and represents at all times that (a) Company has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein, (b) the execution of this Agreement by Company, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Company is a party or by which it is otherwise bound, (c) the Suppression List Company provides is accurate and complete; (d) the links contained in any Ads and/or Campaigns are directed to the intended and agreed upon destination and are not re-directed; and (e) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, or otherwise inappropriate, (iii) violate any applicable law or regulation, or (iv) advertise any unlawful product or service or the unlawful sale of any product or service. In the event this Agreement includes E-mail distribution, Company further represents and warrants that it will comply with all aspects of the Act. Further, to the extent that Company has requested that Company create and develop certain Ads, Company acknowledges that been given the opportunity to reject such Ads, and has approved the Ads and accepted all liability connected to such Ads.
5.2. With respect to a Campaign involving E-mails, Company further represents and warrants, that Company has the power and authority to bind itself and any Agency to these representations and warranties; that Company will comply with all aspects of all state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003; and Company will not submit a Campaign for transmission of any E-mail: (a) with a “from line” that is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the E-mail; (c) that does not include a clear and conspicuous identification that the E-mail is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Company and Publisher; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation. Company also represents and warrants that it will not transmit a Campaign including an E-mail to any individual that has requested not to receive any E-mails more than five (5) days after receipt of such request, provided that the E-mail falls within the scope of the request.
6. Other Services.
Naxosads may, in its sole discretion, offer at no additional charge, and Company may accept at its discretion, Naxosads’s assistance in the conception and development of creative materials to be used in connection with any IO, including, without limitation design, art and/or copy (“Naxosads Produced Materials”). Naxosads reserves the right to include text around the creative materials if necessary to clarify terms within the creative materials in order to comply with best industry practices and avoid potential claims of false advertising. Company grants to Naxosads and Publishers a non-exclusive, revocable license solely to use and distribute the Naxosads Produced Materials in the manner set forth in this Agreement. Neither Naxosads nor its Publishers shall use Company Produced Materials for any other purpose. Naxosads warrants that it has all necessary intellectual property rights and/or licenses to utilize, provide, and create all copy and images used to create Naxosads Produced Materials.
7. Disclaimer of Warranties.
EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Naxosads shall not be liable for any Ad, Campaign or E-Mail, including but not limited to the content thereof, any unavailability or inoperability of the Internet, unavailability or consequences of any Ad or Campaign, the Company Site, or Services, or any technical malfunction, computer error, corruption or loss of information related to or arising out of the Services, the Company Site or any Ad or Campaign. the information and content on Naxosads site and via the service is provided on an “as is” basis with no warranty.
Each party represents and warrants that it shall provide notice for, and fully disclose, its privacy policies and practices to visitors to its web site(s), including its policies and practices with respect to the collection of information on persons who may visit its website(s). Both parties reserve the right to terminate this Agreement immediately, at any time after the start of the Campaign by providing not less than forty-eight (48) hours prior written notice to the other party, upon inspection of the other party’s privacy statement and the party’s reasonable determination that said privacy statement does not adequately disclose the party’s information use and collection practices.
9. Limitation of Liability.
Except for each party’s obligations of Confidentiality and Indemnification, in no event shall either party's liability exceed the total amount paid to Naxosads by COMPANY in the six months preceding the event giving rise to the claim. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE In no event shall either party be responsible for any indirect, incidental, consequential, special, lost profits, or exemplary damages arising from any aspect of the advertising relationship provided herein WHETHER OR NOT FORESEEABLE and whether or not the other party has been advised of the possibility of such damages.
10.1 Except as otherwise provided herein, both parties acknowledge and agree that all information, data, materials, or technology communicated to the other party and marked as “Confidential” or “Proprietary” or reasonably considered confidential under the circumstances of its disclosure hereunder, (“Confidential Information”), was and shall be received in confidence, shall be used only for purposes of this Agreement, and that no such Confidential Information shall be disclosed by the receiving party without the prior written consent of the disclosing party, except as may be necessary by reason of legal, accounting or regulatory requirements. For avoidance of doubt, all email addresses and any other personally identifiable information disclosed by Company to Naxosads and vice versa hereunder shall be considered Confidential Information.
10.2 Except to the extent otherwise required by applicable law, the parties’ obligations under this section do not apply to information that: (a) is or becomes publicly known, through no fault of the receiving party; (b) the receiving party can demonstrate was known by the receiving party prior to disclosure hereunder; (c) the receiving party can demonstrate is disclosed to the receiving party by a third-party with no violation of confidentiality to the disclosing party; (d) the receiving party can demonstrate is developed by the receiving party independent of any use of information disclosed by the disclosing party; or (e) if required by court order, law or governmental agency. In the event that the receiving party is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Confidential Information, the receiving party will notify the disclosing party promptly so that the disclosing party may seek a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, the receiving party will furnish only that portion of the Confidential Information which as advised by counsel, is legally required, and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
11.1 Company agrees to indemnify, defend and hold harmless Naxosads, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys' fees and expert’s fees and costs) resulting from but not limited to claims of tort, false advertising, intellectual property infringement, or actions that may at any time be incurred, arising out of or in connection with the Ads or Company's breach of this Agreement.
11.2 Naxosads agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys' fees and expert’s fees and costs) resulting from claims or actions that may at any time be incurred, arising out of or in connection with the Naxosads's breach of this Agreement.
11.3 Indemnity Procedures. if any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
11.4 Notwithstanding the foregoing, if any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section
11.5 Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
12. Notification of Legal Action by a Third Party
Notification of Legal Action. Company will immediately notify Naxosads of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
Unless expressly stated otherwise on the IO, either party may terminate any IO at any time for convenience, without or without reason or cause upon forty-eight (48) hours prior written notice to the other party for any or all Campaigns. Termination for convenience shall be without waiver, penalty, cost or obligation of either party except that such termination shall not relieve Company of the obligations to pay any amounts due and owing to Naxosads through the effective date of the termination. Naxosads shall, if necessary, immediately require its Publishers to fully terminate their activities under the Campaign. No fees shall accrue or be incurred after the effective date of termination.
14. Proprietary Rights.
Company agrees that it does not have, nor will it claim any right, title or interest in the Service, Naxosads’s Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on Naxosads’s Site (including the Ads). Company will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective Naxosads site tags, source codes, links, pixels, modules or other data provided by or obtained from Naxosads that allows Naxosads to measure ad performance and provide its service. In addition, Company acknowledges that all information, data and reports received from Naxosads as part of the Services are proprietary to and owned by Naxosads. If instructed to do so by Naxosads, Company will immediately destroy and discontinue the use of any such reports or data, and any other material owned by Naxosads or the third party Advertisers.
15. Non-Solicitation with Publishers.
Company will not knowingly (which is defined as “Company having actual and specific knowledge”, and Naxosads acknowledges that Company makes no effort when entering into a relationship with a Publisher to determine if they are or were a Naxosads Publisher) participate in any performance based advertising relationship with any Naxosads Publisher, unless a previously existing business relationship between Company and Publisher can be demonstrated to the reasonable satisfaction of Naxosads. In this connection, both Parties agree and acknowledge that if Company violates its obligations hereunder, Naxosads will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Company through the advertising or marketing efforts of Publisher during the term of this Agreement, and for gross revenues in the three (3) months proceeding the date such violation was discovered by Naxosads and the three (3) months after termination of this Agreement.
This Agreement, together with the IO and any other exhibits or attachments hereto, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties whether written or oral. Naxosads may assign this Agreement to a subsidiary or business successor. Company may not assign this Agreement without the prior written consent of Naxosads, which shall not be unreasonably withheld. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth above, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective upon receipt. Naxosads shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the rest of the Agreement shall be enforceable in accordance with its terms. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. The parties agree that the relationship between Naxosads and Company shall not constitute a partnership, joint venture or agency.
16.1. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
16.2. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Georgia without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction.
16.3. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.