Arbigo Inc. Publisher Agreement
This Publisher Agreement (the Agreement) sets forth the legally binding terms for your use of the Program, to the extent we make them available to you as a Publisher. By accessing and using the Program, you agree to comply with and be bound by this Agreement.
1. YOUR ARBIGO WIDE ANGLE NETWORK ACCOUNT
1.1 Eligibility. By using the Program, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are thirteen (13) years of age or older; and (d) your use of the Program does not violate any applicable law or regulation. Your registered account ("Arbigo Account") may be deleted without warning if we believe that you are younger than thirteen (13).
1.2 Password. When you sign up to become a Publisher, you will also be asked to choose a username and a password for your Arbigo Account. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Arbigo Account, username, or password of another Publisher at any time. You agree to notify us immediately if you suspect any unauthorized use of your Arbigo Account or access to your password. You are solely responsible for any and all use of your Arbigo Account.
1.3 Fees. You acknowledge that we reserve the right to charge for the Program and to change the fees from time to time in our discretion, upon notice to you at the then-current e-mail address stored in your Arbigo Account. Upon using the Program, you will be responsible for the payment of any applicable fees, and shall pay such fees to us.
1.4 Term. This Agreement shall remain in full force and effect while you use the Program or are a Publisher. You may delete your Arbigo Account and end your membership at any time, for any reason by contacting us and requesting that we delete your account. We may terminate your membership for any reason, effective upon sending notice to you at the then-current e-mail address in your Arbigo Account. You understand that termination of this Agreement and your Arbigo Account may involve deletion of your Arbigo Account information from our databases. We will not have any liability whatsoever to you for any termination of your Arbigo Account or related deletion of your information.
2. PROPRIETARY RIGHTS
We do not claim ownership in any Content that you post, make available, or allow Arbigo to index (collectively, post) on the Program, but to be able to legally provide and promote the Program, we have to have certain rights to use such Content in connection with the Program, as set forth below.
By posting any Content on the Program (including any Content on third party services that you have indicated Arbigo can index and/or include on the Program), you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, create derivative works of, and distribute such Content in any and all media (now known or later developed) throughout the world.
You represent that you have all rights in such Content necessary to grant this license. You represent that you have all rights in the Publisher Sites necessary to grant the licenses herein and perform the obligations herein. You hereby grant Arbigo the right to access, index, and copy all of your Content on any service on the internet that is listed on the applicable registration page or account.
Except as expressly provided herein, no compensation will be paid with respect to the Content that you submit, upload, post, transmit or otherwise make available through the Program. You should only post Content to the Program that you are comfortable sharing with others under the terms and conditions set forth herein.
3. ACCEPTABLE USE AND CONDUCT
You are solely responsible for any and all Content that is posted by or through your Arbigo Account on the Program.
3.1 Prohibited Content. You agree that you will not post any Prohibited Content. Prohibited Content includes Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of junk mail, chain letters, or unsolicited mass mailing, or spamming; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person's work that is protected by copyright or trade secret law, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (vii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes from other persons; (ix) except as expressly approved by us, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains viruses, spyware, malware, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; (xi) violates federal or state laws or regulations; or (xii) otherwise violates the terms of this Agreement or creates liability for us.
You represent and warrant that: (a) you own the Content posted by you on the Program or otherwise have the right to grant the license set forth in this Agreement, (b) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person, (c) the Publisher Sites are not (i) free host websites, (ii) TGP sites, (iii) newsgroup postings, or (iv) any other sites that contain, or contain depictions of, or promote illegal content such as child pornography or bestiality, and (d) none of the Publisher Sites employs software that is installed on a user's computer without the user's consent.
3.2 Breach. Any use of the Program in violation of this Agreement may result in, among other things, termination or suspension of your rights to use the Program. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information and Content we consider necessary or appropriate, including, without limitation, Arbigo Account information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted Content.
3.3 Enforcement by Us. We have the right (but not the obligation) to review any Content and delete (or modify) any Content that in our sole judgment violates this Agreement or which is Prohibited Content, or may otherwise violate the rights, harm, or threaten the safety of any person, or create liability for us or any person. We reserve the right (but have no obligation) to investigate and take appropriate legal action in our sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing the Prohibited Content from the Program (or modifying it), terminating your membership, reporting you to law enforcement authorities, and taking legal action against you. You are solely responsible for creating backup copies of and replacing any Content you post or store on the Program at your sole cost and expense.
3.4 Your Account. Any Content used for or photographs posted by you in your Arbigo Account may not contain any material that violates applicable law or third party rights.
3.5 No Disruption. You will not: (i) cover or obscure any advertisements, via HTML/CSS, scripting, or any other means, if any; (ii) interfere with, disrupt, or create an undue burden on the Program or the networks or services connected to the Program; (iii) introduce software or automated agents to the Program so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Program; or (iv) interfere with, disrupt, or modify any data or equipment to manipulate the location-based functionality of the Program.
3.6 Miscellaneous. You will not attempt to impersonate another person, including any of our employees. You will use the Program in a manner consistent with any and all applicable laws and regulations.
4. INTERACTION WITH READERS
4.2 Responsibility. If there is a dispute between you and any third party in any way related to the Program, we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and others.
4.3 Reader Interaction. You will not use any information obtained from the Program in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Reader without his or her prior explicit consent.
5. ADVERTISING NETWORK
You may request to add any of your Publisher Sites to the Arbigo Wide Angle Network. Arbigo may, in its discretion, reject your request and/or remove any Publisher Site from the Arbigo Wide Angle Network at any time. If Arbigo agrees to include a Publisher Site in the Arbigo Wide Angle Network, this Section 5 will apply. You will provide any additional information (in your account or otherwise) Arbigo requires for the Arbigo Wide Angle Network.
By opting-into the Arbigo Wide Angle Network, you grant us a license to serve advertisements on your Publisher Sites. Arbigo grants you a license to include on the applicable Publisher Sites the ad serving code it provides to you (Ad Code), in accordance with this Section 5. Arbigo may also serve ads in conjunction with other Program, including but not limited to search results.
5.3 Ad Code
You may place the Ad Code only on Publisher Sites that you control. Ad Code may not be placed on pop-up windows or pages that automatically refresh, reload, or redirect visitors. The Ad Code must be placed, without modification, directly within the HTML of the applicable Publisher Site pages, and may not be incorporated into any other software application. You may not edit, modify, or otherwise change our Ad Code without our express written consent. Upon Arbigo's written request, you will promptly remove Ad Code from any Publisher Site.
5.4 Advertiser Relationships.
Unless Arbigo agrees otherwise, Arbigo will have sole discretion to: (a) identify, select and manage relationships with Advertisers; (b) establish price schedules and other terms and conditions; and (c) take all actions relating to the foregoing.
5.5 Advertising Termination.
You may stop displaying ads on any Publisher Site at any time by uninstalling the Ad Code.
We may, at any time, with or without cause terminate this Agreement, terminate any Publisher Site participation in the Arbigo Wide Angle Network, and/or terminate all or part of the Arbigo Wide Angle Network upon written notice (via email or through our website) to you. In the event of termination of this Agreement for any reason: (i) you shall immediately remove all Ad Code from Publisher Sites, and (ii) any payment obligations incurred prior to the effective date of termination, shall survive.
5.6 Abuse of Advertising Services.
Unless specifically allowed in this Agreement, you will not authorize, permit, enable or engage in any of the following: (a) generating clicks or impressions except in the course of normal individual use; (b) offering a user any inducement of any kind to generate clicks or impressions; (c) unauthorized implementations, including: (i) use, display, syndication, sublicensing or delivery of the ads anywhere other than on the designated locations of Publisher Sites; (ii) using Ad Code on 404 or other error message pages; (iii) using Ad Code within pop-over or pop-under windows, in or through a downloadable application, or in or through an email; or (iv) using a software application that is downloaded to users' computers to drive traffic to any website on which ads appear unless the application has been formally approved by Arbigo; (c) masking the true user agent or IP address of a user; (d) misidentification of the categories for the Publisher Sites; (e) display of anything (such as pop-up windows or expanding banners) that may obscure any portion of an advertisement or stripping, blocking, or filtering advertisements by any means or in any way preventing or inhibiting the display of advertisements in whole or in part; (f) installing any program on a user's computer or replacing a user's home page, without the user's express and informed prior consent; or (g) displaying advertisements within or as a result of the actions of any software application such as a toolbar. You will cooperate with Arbigo to minimize automated or fraudulent traffic.
Arbigo will pay you the applicable amounts for each Countable Click and/or Countable Impressions on your Publisher Site. Arbigo will have no obligation to make payments for any amounts generated from automated or fraudulent traffic.
Arbigo will pay you within ninety (90) days after the end of each month in which there were Countable Clicks and/or Countable Impressions on a Publisher Site and Arbigo received your valid payment information. However, if the amount accrued for such month is less than $25 (USD), payment will be deferred until the month in which the cumulative balance owed to you exceeds $25 (USD) or the Agreement is terminated. Publishers must have a PayPal account, and all payments by Arbigo to you hereunder shall be made to such PayPal account. In no event, however, including but limited to, upon termination, will we make payments for any earned balance less than $10 (USD).
6. YOUR PRIVACY
THE SERVICES ARE PROVIDED "AS-IS" AND AS AVAILABLE. WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT: (A) THE Program WILL MEET YOUR REQUIREMENTS; (B) THE Program WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Program WILL BE ACCURATE OR RELIABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE Program, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF TEN US DOLLARS ($10) AND THE AMOUNTS WE PAID TO YOU IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from: (i) any interactions with other persons, (ii) any incorrect or inaccurate Content (including any information in profiles) posted on the Program, or (iii) conduct of any third party. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
You will indemnify, defend and hold harmless Arbigo, its affiliates, advertisers and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, liability, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Losses"), arising from or related to your breach of any provision in this Agreement.
11.1 Amendments. We may modify this Agreement from time to time and such modification shall be effective: (1) upon posting by us on the Website, if you first use the Program affected by such modification after the posting, or (2) thirty (30) days after posting by us on the Website. If you do not agree to the modifications, you must cease your use of the Program.
11.2 Survival. The provisions under Sections 2, 3, 4, 7, 8, 9, 10, and 11 will survive termination of this Agreement for any reason.
11.3 Indemnity. Except where otherwise indicated, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested. For Arbigo Wide Angle Network, notices shall be sent to Arbigo Inc. 626 RXR Plaza 6th Floor, Uniondale, New York 11556 to the attention of both the General Counsel and the Chief Executive Officer. For you, notice shall be sent to the contact and address submitted by Publisher with their Arbigo Wide Angle Network account. Either party may designate a different address by written notice to the other party in accordance with this Section. Notice will be effective on receipt.
11.4 U.S. Export Controls. The AdLithium and any other code available in connection with the Program is subject to United States export controls. No software may be downloaded from the Program or otherwise exported or re-exported in violation of U.S. export laws. By downloading or using any software, you represent and warrant that such download or use is not in violation of any such law.
11.5 Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts and federal courts located within the State of Colorado for the purpose of litigating all such claims or disputes. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
You agree that you will not furnish any information relating to our advertisers, policies, operations, or the terms of this Agreement to any third party without our prior written consent.
We may use your name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers. We may, at our discretion, place terms such as "Ads by Arbigo" or "Ads by Arbigo Wide Angle Network" together with a hyperlink as part of the ad placement on your Website.
11.8 Force Majeure.
Arbigo shall not be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control.
Arbigo Wide Angle Network and you shall each act as independent contractors. Nothing in this Agreement shall be construed as creating a joint venture or partnership between the parties.
You will not assign or transfer any rights or obligations under this Agreement without the prior written consent of Arbigo. Arbigo may assign this Agreement in its discretion. Except as permitted by the foregoing, any attempted assignment or delegation will be null, void and of no effect.
This Publisher Agreement was last updated on November 12, 2013.