These Intergi Publisher Terms and Conditions ("Terms") and any separate Intergi Agreement (collectively, the "Agreement"), between Intergi LLC and its affiliates, ("Intergi"), and the individual or entity entering into this Agreement ("Publisher") shall govern Publisher's participation in the Intergi Marketplace. In the event of any inconsistency between the Terms and an Intergi Agreement, the Intergi Agreement shall have precedence over the Terms.
"Action" means a specific activity that is required to qualify for the payment of the display of a Creative, i.e., click, purchase, registration, etc.
"Intergi Marketplace" means the third party websites through which Intergi can distribute Creatives, including the Display Network, Video Network and Sponsored Listings Network.
"CPA" means a campaign for which Publisher shall be paid on a cost per Action basis.
"CPC" means a campaign for which Publisher shall be paid on a cost per Unique Click basis.
"CPM" means a campaign for which Publisher shall be paid on a cost per thousand Impressions basis.
"Creative" means advertising materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders, Display Creatives, Sponsored Listings Creatives and Video Creatives.
"Display Creative" means a graphic image or media object used as an advertisement.
"Display Network" means the third party websites through which Intergi distributes Display Creatives.
"Impression" means an instance in which a Creative is served to, and received by, a Unique Visitor on the Publisher Website as measured by Intergi, not including automated page refreshes. Notwithstanding the foregoing a Video Creative served with any companion banner shall count as a single Impression as measured by Intergi.
"Invalid Click" means any click on a Creative that (i) causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher Website, or because of alterations made by Publisher or erroneous coding placed on the Publisher Website; or (ii) results from applying repeated manual or mechanically automated clicks on mouse or keyboard or any other non-human click generation processes (including but without limitation robots, spiders, scripts or other software) as well as all other clicks resulting from methods that Intergi determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
"Net Revenue" means, with respect to any particular period of time, the amount invoiced by Intergi to advertisers with respect to Creatives on the Publisher Website, less the following deductions: (i) transaction fees, (ii) third party campaign referral fees and commissions, (iii) applicable ad serving and technology fees paid to third parties, (iv) fees paid by advertisers for training and implementation services, and (v) Invalid Clicks.
"Revenue Share" means, with respect to monies earned over a particular period of time, an amount equal to the product of (i) the Net Revenue , multiplied by (ii) 55%.
"Network Tags" means scripts provided by Intergi that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by Intergi and request transmission from those servers of Creatives.
"Marks" means a party's trademarks, service marks, logos and trade dress.
"Publisher Page" means a web page on the Publisher Website.
"Publisher Website" means a website, application, or other media owned or operated by Publisher, or on which Publisher is otherwise legally authorized to act in the manner contemplated by this Agreement.
"Sponsored Listings Network" means the third party websites through which Intergi distributes Sponsored Listings Creatives.
"Sponsored Listings Creative" means a text-based reference to an advertiser's products or services, which includes a link to such advertiser's website, and which may also include an image and/or logo.
"Unique Click" means an instance in which a person viewing the Publisher Website, as identified by cookie or IP address, clicks on a Creative, as measured by Intergi (provided however, that a click on a specific Display Creative by a particular person shall only be counted as a Unique Click once every 1-hour period).
"Unique Visitor" shall mean a visitor to the Publisher Website as identified by Intergi based on such visitor's IP address.
"User Interface" means an online tool provided by Intergi through which Publishers may access approved sites, Publisher information, reports and such other campaign management functions as may be available from time to time.
"Video Creative" means a broadband video advertising unit as more fully described in the IAB Digital Video In-Stream Ad Format Guidelines.
"Video Network" means the third party websites through which Intergi distributes Video Creatives.
a) Network Tags. Intergi requires placement of Network Tags on the Publisher Websites participating in the Intergi Marketplace. Publisher shall use reasonable efforts to promptly place and enable the Network Tags.
b) License Grant. Subject to the terms and conditions of this Agreement, Intergi grants to Publisher a limited, non-transferable, non-exclusive, non-sub-licensable right and license to use the Network Tags and display Creatives on the Publisher Website, solely for the purposes of performance of this Agreement and solely during the term thereof.
c) Restrictions; Prohibited Activities. Publisher shall not do any of the following: (i) Place the Network Tags on any Publisher Website that have not been specifically approved for participation in the Intergi Marketplace. Approved Publisher Websites will be specified in the User Interface. In addition, Intergi may approve additional Publisher Websites in writing (with email being sufficient) in its sole discretion. (ii) Alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available the Network Tags or Creatives or any copies thereof to any third party, or create derivative works therefrom. (iii) Copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes. (iv) Place Network Tags on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other), or in a fashion that may be deceptive to the visitor in that it causes the Creatives to look like editorial content. (v) Serve Creatives from any location other than the Intergi server (stored images that are loaded from a different location will not count towards any statistic or payment). (vi) Induce persons to click on Creatives based on incentives (e.g. rewards programs). (vii) Use unsolicited email to promote Creatives. (viii) Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e. requiring a visitor to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.
d) Prohibited Content. Intergi does not accept any Publisher Website that contains the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; (iii) Any content that contains or promotes illegal activities, including, but not limited to hacking, phreaking and online gambling; (iv) any content that contains or promotes pornography or graphic sexual depictions; (v) any content that contains, promotes or links to indecent, obscene or highly explosive subject matter; (vi) Any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent) (collectively referred to as the "Prohibited Content"). Publisher represents and warrants that during the term of this agreement none of the Publisher Websites on which it places Creatives shall contain or promote any Prohibited Content.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, Intergi retains all right, title and interest in and to the Intergi Marketplace, the technology utilized by Intergi to operate the Intergi Marketplace, the Network Tags, and the Creatives, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein.
f) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Publisher Website, (ii) use the Network Tags, (iii) display the Creatives, and (iv) access and use the Intergi Marketplace services.
a) General. Payment. Intergi will pay Publisher 55% of gross advertising revenue received by Intergi for advertising placed on Publisher's website, and Intergi will retain 45% of the revenue for its services. Intergi will pay Publisher only for months in which earned revenue exceeds $100 for the month. Intergi reserves the right to charge a 5% ad-serving fee to cover actual ad-serving costs. Revenue which is not paid to Publisher in any month will be credited to the account of Publisher and paid later, when accrued revenue exceeds $100.00. If Publisher wishes to change this $100.00 limit, Publisher can do so through the Intergi web interface for Client Publishers. Intergi will pay Publisher 60 days after the end of the month for which revenue was earned (Net 60). Publisher must keep its payment address, email address and telephone number in their account current. If Publisher has failed to notify Intergi of changes in Publisher's account information, causing Intergi to be unable to notify Publisher in writing, then this Agreement shall terminate without notice, and all payments due Publisher shall be governed by the uncashed check provision below as if the payments due had been in the form of an uncashed check.
b) Uncashed Checks. If Intergi mails a check for a payment due Publisher under this Agreement to the Publisher's last known address, Publisher must cash said check within six (6) months of the date of the check or failing so to do, Publisher agrees that: (i) the funds represented by the uncashed check shall be disposed of without further notice as provided herein; (ii) for a Publisher whose last known address is in a state that has a business to business exemption in its unclaimed property laws, the Publisher agrees that it shall have no further interest in the funds represented by the uncashed check, and Intergi shall succeed to the Publisher's interests therein; (iii) for all other Publishers, the funds represented by the uncashed check shall be deemed abandoned under applicable unclaimed property law; and (iv) Publisher agrees that six (6) months is a reasonable period after the expiration of which the actions described above shall be taken.
c) Withholding Payment. Intergi reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by Intergi in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to Display Creatives, in no event may more than five percent (5%) of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
d) Taxes. Intergi assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Intergi Marketplace, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Intergi harmless from any such taxes. Intergi shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Intergi for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Intergi may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Intergi's sole and absolute discretion.
4. Counting. Intergi shall have the responsibility in its absolute and sole discretion for calculation of statistics and payments, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on or through the Publisher Website, as applicable.
6. Content; Availability of Inventory. In the event that Publisher materially changes the Publisher Website content after approval into the Intergi Marketplace, Publisher must send written notice to Intergi of the changes immediately. Notices should be sent to Publisher’s Account Manager or to firstname.lastname@example.org. Publisher’s participation in the Intergi Marketplace is non-exclusive and all inventory is preemptible at Publisher’s sole discretion.
7. Delivery and Suspension of Advertising Campaigns. Intergi may fill Impressions with Creatives offered by Intergi or by third party partners. All delivery shall be subject to frequency capping and targeting parameters established by Intergi, and Publisher agrees that Intergi may access, crawl, index and cache the Publisher Website or any portion thereof for such purposes. Unused impressions that are not filled with Creatives may be redirected to Publisher via a redirect link provided or approved by Publisher.
8. Provision of Impressions. Unless otherwise agreed by Intergi in writing, Publisher shall ensure that there are no Spikes in the number of Impressions delivered to Intergi during a given calendar month, and Intergi, may, in its sole discretion, reject Impressions that are delivered as part of a Spike. A “Spike” means the delivery of Impressions equal or greater than two times the number of Impressions for three (3) consecutive days, subject to a minimum of (i) five million (5,000,000) Impressions per day, on the Display Network, or (iii) one million (1,000,000) Impressions per day on the Video Network.
9. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Intergi Marketplace. Unless otherwise set forth in an Intergi Agreement, either party may terminate this Agreement, for any reason whatsoever, upon written notice to the other party. Upon termination, any licenses granted by Intergi hereunder shall immediately terminate and Publisher must remove all Network Tags from the Publisher Website and cease delivery of any and all Creatives. In the case of termination, Intergi will pay Publisher all uncontested amounts due during the next billing cycle. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 4, 5, 6, 7, 8, 9, 10 and 11 through 21.
10. Limitation of Liability. INTERGI WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF INTERGI LLC WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL INTERGI'S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST INTERGI MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.
a) Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of Intergi and its officers, directors, agents, affiliates and employees associated with any and all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) for libel, defamation, violation of right of privacy or publicity, breach of contract, 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 the Publisher Website (except for Creatives supplied by Intergi, unless such Creatives were modified by Publisher without the express written consent of Intergi); (ii) arising out of any material breach by Publisher of any term, condition, representation or warranty under this or any other agreement with Intergi; or (iii) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher's Website (other than through a Creative supplied by Intergi, unless such Creative was modified by Publisher without the express written consent of Intergi).
b) Intergi. Intergi hereby agrees to defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by Intergi of any term, condition, representation or warranty under this Agreement.
c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party's cost and expense.
12. Confidentiality. Each party ("Discloser") acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other party ("Recipient").
a) Defined. " Confidential Information" means information regarding Discloser's trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature.
b) Obligations. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, "Representatives") who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser's expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. "Confidential Information" does not include information that: (ii) is known to or in the possession of Recipient prior to its disclosure to Recipient hereunder, as evidenced by the Recipient's written records; (iii) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (iv) is made available free of any legal restriction to Recipient by a third party ; or (iv) is independently developed by Recipient without use of or reference to Confidential Information. Notwithstanding anything to the contrary in this Agreement, Intergi may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Publisher), which it has collected or received in providing the service, to the extent necessary to perform, enhance or improve its services and/or for Intergi's business and marketing purposes.
13. Marks Usage. Publisher authorizes Intergi to disclose its membership in the Intergi Marketplace and grants Intergi a non-exclusive, worldwide, royalty-free right and license to use, reproduce and display : (i) Publisher's Marks in connection with Intergi's sales materials and presentations and as otherwise needed to perform its obligations under this Agreement; and (ii) Publisher's Marks and statistics relating to the performance of a particular advertiser or agency's Creative on the Publisher Website, to such advertiser or agency. In addition, Publisher agrees that Intergi may sublicense the foregoing rights to third party partners procuring Creatives on its behalf. Publisher may not disclose its membership in the Intergi Marketplace or use Intergi's Marks without the prior written consent of Intergi.
14. Entire Agreement; Assignment. This Agreement, as and if amended, shall constitute the entire and only agreement between the parties regarding Publisher's participation in the Intergi Marketplace, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement without the prior written consent of Intergi, which consent shall not be unreasonably withheld. Any assignment by Publisher without such consent shall be void ab initio. This Agreement shall inure to the benefit of all permitted successors and assigns.
15. Representations and Warranties
a) Both Parties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.
b) Publisher. Publisher represents and warrants that (i) it is legally authorized to place the Network Tags on the Publisher Website and to perform its obligations herein with respect to the Publisher Website; and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
c) Intergi. Intergi represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to use the Network Tags and Creatives in the manner authorized by this Agreement, and (ii) will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
16. Modifications. Intergi shall have the right to change, modify or amend these Terms, in whole or in part, by posting revised Terms on its website at least five (5) days prior to the effective date of such change. Publisher's continued use of the Intergi Marketplace after the effective date of such change shall be deemed Publisher's acceptance of the revised Terms.
17. Warranties; Disclaimer. NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED, EXCEPT AS EXPRESSLY SET FORTH HEREIN. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
18. Governing law; Venue. These Terms and Conditions shall be construed and interpreted according to the laws of the State of Florida without reference to conflicts of law provisions. The parties hereby consent to the exclusive jurisdiction of the courts of Broward County, Florida. All written notices between the parties shall be deemed to have been given if personally delivered, sent by courier or certified, registered or express mail, or transmitted by electronic mail via the Internet (with copy sent by registered or certified airmail) to the address specified by applicant in the Join Form. Unless otherwise provided herein, all notices shall be deemed to have been duly given on (i) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally, by electronic mail or by courier, or (ii) three days after the date of posting if transmitted by mail.
19. Severability and Waiver; Captions. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The captions appearing in this Agreement are inserted only as a matter of convenience. This Agreement shall be interpreted as if drafted jointly by the parties.
20. Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquak<