This Master Services Agreement (“MSA”) is entered by and between you (“Publisher”) and 4inkjets (“Company”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. Company and Publisher agree as follows:
1. Insertion Orders
(From time to time, the parties may negotiate insertion orders (“IO’s") under which Publisher or its third party marketing affiliates (collectively “Publishers”) will deliver advertisements (“Ad(s)”) provided by Company to Publisher’s site(s), channel(s), and/or network(s) (collectively known as the “Site”) for the benefit of Company. Each individual IO will be executed by the parties and will become an Addendum to these Terms and Conditions, subject to all of the terms and provisions hereof. The terms of these Terms and Conditions shall be incorporated into each such IO by this reference. All IO's must be signed by Company and Publisher and returned to Company. Publisher may use its own insertion orders for internal inventory tracking purposes, but such insertion orders shall not be incorporated into this MSA. In the event of a conflict between any term, condition or provision of an IO and this MSA, the conflicting term, condition or provision of this MSA shall control, unless such IO specifically references this MSA by name and date and explicitly provides that the conflicting term, condition or provision of said Insertion Order is intended by the parties to control over the conflicting provision (cited by section number) of this MSA.
2. Ad Placement
(a) Publisher agrees to undertake and complete the services as specified in the IO, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website or email. Any exceptions must be approved by Company in writing. All Company email campaigns are on a CPA basis only unless otherwise specified in a IO signed by authorized Company representative..
(b) Except as permitted under this MSA, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative, computer code or other intellectual property provided by Company, without Company’s prior written consent. Publisher may not copy Company's Ads and display them from Publisher's Website directly, redirect traffic to a Website other than that listed by Company, or ask Users to take advantage of other Ads or offers other than those listed by Company . Any Company content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to Company intellectual property shall be owned solely by Company.
(c) Publisher shall be solely responsible for placing Ads subject to the terms and conditions of this MSA. Publisher also is responsible for full delivery of valid data in the requested format as specified through the user interface or by a Company representative. Company pop-under windows cannot be launched from Websites that launch more than a total of two pop windows, including the Company pop-under. Skyscrapers or wide skyscrapers and half-page formats cannot be placed on the same page. Text Ads are limited to a total of seven text links per page in any combination of stand alone and/or multiple links. For Company banners, Company’s ad code must be placed and appear on the upper third portion (“above the fold”) of any page containing such code. Company banners may not be grouped together with more than three full-sized banners on the same page. Publishers agree to use the Company ad code provided for displaying creative not more than ONCE per page view. Publisher will not place Ads on blank pages, on pages with no content, on non-approved Websites, or in such a fashion that may be deceptive to the User. Ads may not be placed on forums, chat rooms, and other entities for which Publisher does not have complete control and/or ownership.
(d) Publisher shall not: (1) incentivize or offer points, rewards, cash or prizes for any User action unless it is expressly noted that the campaign is an incentive offer; (2) place statements near the Ads requesting that Users “click” on the Ad (i.e., “Please click here”) or “visit” the sponsor (i.e., “Please visit our sponsor”); (3) place misleading statements near an Ad (i.e., “You will win $5,000”); (4) redirect traffic to a Website other than that listed in the IO; (5) ask Users to take advantage of Ads or offers other than those listed in the IO; (6) serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of Company, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (7) use invisible methods to generate Impressions, Clicks, or transactions that are not initiated by the affirmative action of the end-user; or (8) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure Ad performance and provide its service.
(e) Publisher shall not place any Creative on Websites that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, 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 Company; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) personal web pages, non-English language pages, or free hosted pages (i.e., Geocities, Xoom, Tripod, Talk City, etc.); (5) Websites under construction, hosted by a free service, personal home pages, or do not own the domain they are under; (6) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; or (7) promote activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, “Spyware” shall mean computer programs or tools that (i) alter a computer User’s browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer User’s reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-Spyware or anti-virus technology on a User’s computer; (iv) send email through a User’s computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser which cannot be closed without closing the Internet browser or shutting down the computer; or (vi) other similar activities that are prohibited by applicable law.
(f) Publisher shall not: (1) violate guidelines of any search engines being utilized; (2) engage in search engine spam, doorway pages, cloaking, etc.; (3) bid on any trademarked name or terms in any PPC/“keyword”/“adword”/campaign unless given express written permission by Company; (4) conduct search ads falsely suggesting a link between Company and a third-party or otherwise infringing on a third-party’s intellectual property or privacy rights; (5) engage in any advertising via facsimile or telemarketing; or (6) engage in any misleading or deceptive conduct. The restrictions in paragraphs (e) and (f) shall be collectively referred to as “Prohibited Conduct”.
3. Company Content
(a) Publishers may not in any way alter or change Company’s marketing creative materials (“Company Content”). Publishers may not remove any HTML code, such as tracking pixels, from Company Content. Any Company Content which is changed or altered without Company’s prior written consent will result in non-payment for campaign and may result in termination.
(b) Publishers will use commercially reasonable efforts to provide Company at least two (2) business days prior notification of any material changes that would change the target audience or significantly affect the size or placement of the Ad specified in the affected IO. Should such a modification occur with or without notice, as Company’s sole remedy for change or notice, Company may immediately cancel the remainder of the IO without penalty and in such case shall not be charged for any affected Ads delivered after such modification.
(c) Publisher will submit or otherwise make electronically accessible to Company within two (2) business days of acceptance of an IO final technical specifications, as agreed upon by the parties. Changes to the specifications of the already purchased Ads after that two (2) business day period will allow Company to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) request that Publishers resize the Ad at Publishers’ cost, and with final creative approval of Company, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within two (2) business days, immediately cancel the remainder of the IO for the affected Ad without penalty. The Company Ads may not be assigned or resold unless stated in the IO. Failure to secure this permission may result in immediate termination of the IO by Company.
4. CPA and CPL Campaigns
Company will only pay for completed transactions. In the event that Company fails to receive payment from a customer, or in the event of a cancelled order, chargeback or fraudulent transaction (as determined by Company in its sole discretion), Company will have no payment obligation to Publisher in respect of that transaction. Upon payment, Company shall have no further obligation to Publisher. Publisher must not generate Clicks, sign-ups or leads by (i) auto spawning browsers, automatically redirecting Users, or any other technique of generating “automated” Click-Throughs, falsely generating User data, or posting User data that is older than 48 hours; (ii) placing misleading statements near the Creative (i.e., "You will win $5,000"); or (iii) Prohibited Conduct.
5. Email Practices
(a) Before sending Ads to its customers, Publisher will send test Ads of each email creative to the Company contact listed in the IO for approval. Publishers will also add specified emails addresses to Publishers’ general opt-in file so that Company will receive future offers from Publishers unrelated to this MSA. Prior to Publishers sending email Ads to customers under this MSA and regularly thereafter for active campaigns, Company will provide Publisher with a "do not send" (“DNS”) file. This file will contain a list of email addresses of people who have contacted Company and have requested that they never receive offers from Company. Publishers will "scrub" its email file before mailing the email Ads to ensure that none of the email addresses from the DNS file are sent in Publishers’ mailings to customers. Publishers may not use Company’s DNS file for any other purpose, will return such file after termination of this MSA or in the event there is no activity under this Agreement for thirty (30) days or more and certify that it has not retained any copies of any portion of such DNS file.
(b) Publisher shall not: (1) use any name other than Publisher's in the “from” box when sending an email to a consumer; using any other name, including but not limited to Company’s name, is prohibited and will result in non-payment and immediate termination; (2) use deceptive subject lines, including but not limited to claims that “You Have Won,” “Your Order is Waiting,” or “Order/Offer Confirmation” unless the recipient indeed has won some prize, has an order waiting and need not take any further steps to claim this prize or order, or the email truly is confirming a prior exchange or transaction with the consumer; or (3) send any commercial email to any person who has requested not to receive email from Publisher or use any name contained in Company’s suppression list for any purpose other than as expressly provided herein. Publisher understands that upon doing so it automatically forfeits the right and claim to any revenue generated for its account, and Publisher's account will be immediately terminated.
(c) Company has a strict policy against sending unsolicited commercial email (“UCE”), commonly referred to as “Spam”. Publisher warrants and represents that all email and Ads delivered under this MSA will be to permission-based subscribers who either have (i) given Publishers (or a third party) express consent to allow Publishers to send them such email messages in response to a clear and conspicuous request for such consent or at the recipient’s own initiative or (ii) with whom Publishers has a prior business relationship. Company prohibits marketing to any email addresses that were acquired through an “opt-out” process without sending a confirming email to such address. Any claims against Company from recipients of the email Ads that such emails Ads constitute UCE will be directed to Publisher and Publisher will make reasonable efforts to satisfactorily resolve the issue with the recipient.
(d) Publisher will only send advertisements to United States email addresses for which a message to such address would not constitute a mobile service message as defined by the CAN-SPAM Act. No Company Ads may be sent in newsletters or other emails having multiple advertisers only as set forth in applicable Federal Trade Commission regulations and guidance letters.
(e) Publisher is required and agrees to maintain at all times during the term of this MSA, and for a period of three (3) years after, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher's Email Lists. Publisher agrees that, within twenty-four (24) hours of Company’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends an email Ad to: (i) subscriber email address used to sign-up/register for Publisher's Email List; (ii) subscriber's IP address; (3) date and time of subscriber's sign-up/registration for Publisher's Email List; and (iv) location of subscriber's sign-up/registration (i.e., what is the original source of the subscriber email address; where did the subscriber sign-up/register for Publisher's Email List).
6. Proprietary Rights
(a) At the agreed upon pay-out price and provided that Publisher complies with all provisions of this MSA, Company hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Company intellectual property solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this MSA shall be construed as Company granting Publisher any right, title or interest in Company intellectual property. Publisher acknowledges and agrees that Company owns all right, title and interest in and to the Company intellectual property and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher’s use of the Company intellectual property or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this MSA is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
(b) Subject to the limited licenses granted to Company and Publisher hereunder, each party shall own and retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this MSA, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
(c) Publisher understands that all data, including but not limited to personally identifiable information provided by Users in response to an Ad and any and all reports, results, and/or information created, compiled, analyzed and/or derived by Company from such data is the sole and exclusive property of Company and is considered Confidential Information pursuant to this MSA.
7. Representations and Warranties
(b) Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this MSA; (ii) neither the execution, delivery, nor performance of this MSA will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the MSA.
(a) Publishers will be paid within 30 days from the date of invoice. All accounts will be settled in US dollars ($US). As a condition to Company's obligation to make payments hereunder to Publisher, Publisher must have on file with Company a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Publisher’s payments will be withheld until the appropriate taxation documents are received by Company. If the required tax documents are not on file with Company within three months of the date of a scheduled payment, Company may charge a monthly administrative fee, representing Company’s cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by Company. Company reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Company will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this MSA. Examples of such acts may include, without limitation, Clicks without referring URLs, high numbers of repeat Clicks, Clicks from non-approved root URLs, and fraudulent leads.
(b) Calculation of Publisher earnings shall be in Company’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Company detailing, with specificity, Publisher's concerns. Thereafter, Company will provide Publisher with an explanation or, if such calculations are determined by Company to be incorrect, an adjustment. Company’s calculations shall be final and binding.
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s); (ii) any material to which Users can link through Publisher's Website(s); or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, and agents (collectively “Company Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the Company Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, violation of spam laws, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Website(s); (b) any breach by Publisher of any duty, representation or warranty under this MSA; (c) any breach by Company of any duty, representation, or warranty to provide Ad(s) for placement on Publisher's Website(s) due to any breach by Publisher of this MSA; (d) a contaminated file, virus, worm, or Trojan horse originating from the Publisher's Website(s); or (e) gross negligence or willful misconduct by Publisher.
11. Limitations of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL COMPANY’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
12. Term and Termination
This MSA, as may be amended, applies to Publisher for as long as Publisher distributes Ads for Company. Company reserves the right to terminate any Publisher from the Company Network at any time, with or without cause. Upon termination, Publisher agrees to immediately remove from its Website(s) any and all Company Code and Company intellectual property supplied to Publisher by Company. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination.
(a) Each party agrees that, during the term(s) of this MSA and for a period of one (1) year thereafter, any party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) hereunder, shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of: (i) the Lists or other written information received from the other party which is marked or identified (orally or in writing) as confidential, and (ii) oral or visual information that is identified (orally or in writing) as confidential at the time of disclosure or any information that should, under the circumstances surrounding disclosure, reasonably be treated as confidential (“Confidential Information”). Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this MSA and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such directors’, employees’ and advisors’ compliance with, or are otherwise obligated to honor, the terms of this MSA. This Section shall not apply to information which belongs to the Receiving Party or is: (i) already known by the Receiving Party, (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party, (iii) lawfully received from a third party without restriction on use or disclosure if, to the Receiving Party’s knowledge, such third party had the legal right to disclose such information, or (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition a party may disclose Confidential Information hereunder if pre-approved in writing by the other party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement where permitted.
(b) Upon completion or termination of this MSA or the written request of the Disclosing Party at any time, the Receiving Party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the Disclosing Party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel. A Receiving Party may return Confidential Information, or any part thereof, to the Disclosing Party at any time. The parties agree that during the term(s) of this MSA and for a period of one year thereafter, they will not directly solicit the employment of any of the other party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section.
14. Choice of Law and Attorneys’ Fees
This MSA is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this MSA shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction and agree to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this MSA is entitled to recover from the other party its reasonable attorneys’ fees and costs.
15. Entire Agreement and Modification
This MSA, including exhibits and addenda, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this MSA. This MSA may only be altered, amended or modified by an instrument that is assented to by each party to this MSA by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent. Company may, at any time and without further notice, revise this MSA by posting an amended version on the Company’s website. Any changes will be effective upon posting for any IOs entered after the effective date of a change to this MSA. It is Publisher’s responsibility to review this MSA periodically.
Except as provided elsewhere herein, both parties must send all notices relating to this MSA to: (i) for Company, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: CEO, 4inkjets, 2500 Grand Ave, Long Beach, CA 90815 USA (effective upon actual receipt); and (ii) for Publisher, at the email or physical address listed on Publisher’s account (effective upon sending as long as Company does not receive an error message regarding delivery of the email) or five (5) days after mailing).
No rights or obligations under this MSA may be assigned by Publisher without the prior written consent of Company. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Company and any of its subsequent assignees may assign this MSA, in whole or in part, or any of its rights or delegate any of its duties, under this MSA to any party. This MSA shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
18. Independent Contractors
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
Publisher shall not release any information regarding campaigns, Creatives, or Publisher’s relationship with Company or its Customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Company.
20. Force Majeure
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
21. Survival and Severability
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the MSA shall survive and remain in effect after such happening. Each party acknowledges that the provisions of the MSA were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the MSA conflicts with the law under which the MSA is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the MSA, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the MSA will remain in full force and effect.
22. Remedies and Waiver
Except as otherwise specified, the rights and remedies granted to a party under this MSA are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
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