Publisher Agreement General Terms
In this Publisher Agreement ("Agreement"), "you" and "your" refer to individuals or entities (the "Publisher(s)") that have applied to participate in the HERadx network (the "HERadx"), and "HER", we", "us" and "our" refers to HER Inc., dba EmpowHER.com. Participation in the HERadx indicates that you fully understand and accept the terms and conditions specified in this Agreement. If you do not agree to any of the terms and conditions of this Agreement, you may not participate in the HERadx.
In addition to the defined terms set forth elsewhere in this Agreement, the following definitions shall apply to this Agreement:
- "Ad(s) or Advertisement(s)" means any advertisement provided by us, whether from us directly or from our Advertising Partners.
- "Advertising Materials" means artwork, creatives or copy for Ads.
- "Affiliate" means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
- "Publisher Properties" are websites that are owned, operated, or controlled by You.
- "HERadx Properties" means websites that are not owned, operated, or controlled by Publisher, but on which Publisher has a contractual right to serve Ads.
- "Advertising Partners" refers individually and collectively to partners and other advertisers that we have contracted with to provide the Ads.
- "Order Form" refers to any order form that may be executed between HER and you from time to time, which order form shall set forth you current contact information, applicable pricing information, initial term, and such other information as mutually agreed upon.
- "Sites" means Publisher Properties and HERadx Properties.
- "Third Party" means an entity or person that is not a party to this Agreement.
2. CONTACT INFORMATION, SITE ELIGIBILITY AND APPROVAL
2.1. We will use the contact information you provide us on your most recent Order Form to contact you in all matters related to this Agreement. Further, we will treat all communications received from your most current contact information (including email) on file with HER as being authorized by you. You agree to immediately notify HER of any unauthorized use of your email or any other breach of security. HER cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.
2.2. We, prior to you placing Ads on any Sites, must approve each Site. We reserve the right to deny, refuse, or revoke your participation, or the inclusion of any Site, in the HERadx at any time in our sole discretion. In addition, you grant HER the right to access, index and cache Publisher properties, HERadx properties, or any portion thereof by automated means, including but not limited to web spiders or crawlers.
2.3. You shall promptly inform HER in writing if you or any of your Affiliate is, or has ever been, suspended and/or terminated for invalid traffic, spam, fraud, compliance issues or any breach of terms by any other advertising network or similar business partner, failing which, if brought to HER's notice, HER reserves the right to suspend your rights under this Agreement or terminate this Agreement pursuant to Section 7 below.
3. AD PLACEMENT; AD CODE
3.1. You agree to place the Ads only on Sites that have been explicitly approved by HER. HER will only approve sites that have a content filled, navigation-friendly site design (as determined by HER in its sole discretion). Ads may not be placed on web pages with no content or only advertisements.
3.2. You may not place Ads in inappropriate places such as pop-ups, emails or software. In addition, Ads may not be:
- Obscured by elements on a page.
- Placed on any non-content-based page.
- Placed on pages published specifically for the purpose of showing ads.
- Placed on, within or alongside other products or services in a manner that violates the policies of that product or service.
- Placed on under construction, parked pages or personal home pages.
- Placed on free hosted pages.
- Placed on pages where the bulk of the content is user-generated
- Placed on pages that redirect traffic to another page other than ones specifically approved by HER to be in the HERadx
- Cached, stored, copied, distributed, or redirected;
- Edited, resized, modified, filtered, obscured, hidden, made transparent, or reordered;
3.3. Further, you may under no circumstances place Ads on pages with content that includes:
- Adult, Pornographic or any illegal content
- Tobacco, alcohol, ammunition, hazardous substances, illegal drugs, gore, violence, gambling and racism content
- Pages containing profanity or content that and/or discriminates or is offensive to any section of people
- Hate, violence, racial intolerance, or advocate against any individual, group, or organization
- Sale of prescription drugs
- Sale of counterfeit products, imitations of designer or other goods, stolen items or any products that infringe intellectual property rights of other parties
- Contain programs which promote invalid click activity by paying users to clicking on ads, browse websites, read email etc.
- Websites that contain forums, discussion boards, chat rooms, or any content area that is open to public updates without adequate moderation
- Sites with content that has been generated using computer programs and hence may not be comprehendible.
- Sites that promote activities generally understood to be internet abuse, including the sending of unsolicited bulk electronic mail or the use of spyware, or software piracy (e.g. warez, torrentz, cracking, etc...), hacking, phreaking or other illegal downloads
- Any other content that we believe in our sole discretion to be illegal, immoral or contrary to our or our Advertising Partners' principals
3.4. You may not display Ads on webpages with content protected by copyright law unless these webpages have the necessary legal rights to display that content.
3.5. Except as expressly set forth otherwise in this Section 3.5, any attempt to alter, modify, eliminate, conceal or otherwise render inoperable the ad tags, source code, links, pixels, modules or other data contained in the Ad code is strictly prohibited. Ad code may not be altered, nor may the standard behavior, targeting or delivery of Ads be manipulated in any way that is not explicitly permitted by us, as documented in a signed writing you receive from HER. Unless HER approves otherwise in advance in writing, Ad code must be placed directly into the HTML source of the Site.
4. INVALID CLICKS OR IMPRESSIONS
4.1. All impressions must be legitimate and clicks on Ads must be genuine and made purely based on user interest. You may not click the Ads or use any means to inflate impressions and/or clicks artificially, including manual methods. Any method that artificially generates clicks or impressions on the Ads is prohibited. These prohibited methods include, but are not limited to, repeated manual clicks or impressions, automated click and impression generating tools and the use of robots or deceptive software.
4.2. In addition, some specific prohibitions include (but are not limited to):
- Incentive Networks: Publishers may not offer any compensation or incentivize any person in any manner to view/click ads. Clicks made by the Publisher on his own ads will be considered invalid
- Misleading Users: Publishers shall not provide any text in or around the ad units, or include phrases that may mislead a user or encourage them to click the ads. Any ads that are disguised within the content and/or placed in a manner which cannot be distinguished from content are prohibited
- Deceiving Images: Placing images or thumbnails around the ad unit which may deceive a user is prohibited
- Automated clicks: Participating in or using any automated click and impression generating tools, use of bots, open proxies or software that can lead to false impressions and clicks.
5. TRAFFIC SOURCES
5.1. You may not place Ads on pages receiving traffic from certain sources. For example, publishers may not participate in paid-to-click programs, send unwanted emails or display ads as the result of the action of any software application.
5.2. Publishers shall not drive traffic to their sites through incentivized click programs, spam email marketing, paid-to-surf, autosurf, click-exchange programs, unwanted advertisements on third-party websites, toolbars and other unsolicited software downloads
5.3. HER may monitors the quality of traffic coming to your Sites for continued compliance with this Agreement and maintenance of our quality standards. In addition, you agree to promptly and fully cooperate with HER's reasonable requests for information to be used for auditing of your compliance with the terms of this Agreement. Should HER determine, in HER's sole discretion, that any Sites previously approved by HER are no longer acceptable for continued participation in the HERadx, you shall promptly cease providing Ads to such Sites.
6. PAYMENT AND PAYMENT LIABILITY
6.1. We will make monthly revenue payments ("Revenue Payments") to you as set forth in the applicable Order Form(s). Revenue Payments shall be accompanied by a report reasonably detailing the Ads served to Publisher's Sites and the calculation of the Revenue Payment. Unless set forth otherwise in the applicable Order Form, HER will make payment to you monthly, within sixty (60) days after the end of the month. Notwithstanding the foregoing, We shall not be liable for any payment based on (a) any fraudulent impressions generated by any person, bot, automated program or similar device or for fraudulent clicks similarly generated on any Ad, as reasonably determined by us; (b) Ads delivered to end users whose browsers have the Ads disabled; (c) Ads benefiting charitable organizations and other placeholder or transparent Ads that HER may deliver in the event that a Site is improperly configured to comply with our technical requirements; (d) HER advertisements for its own products and/or services; or (e) impressions co-mingled with a significant number of fraudulent impressions or fraudulent clicks described in (a) above, or as a result of other breach of this Agreement by Publisher for any applicable pay period. We reserve the right to withhold payment or seek a refund of any Revenue Payment in the event of any breach of this Agreement either directly or indirectly by you.
6.2. HER reserves the right to change or modify the methodology for calculating and/or reporting the Revenue Payments due to You at any time at its sole discretion and/or correct any reporting errors. Publisher must notify HER in writing of any claims that HER's Revenue Payments or reports are inaccurate within thirty (30) days of receipt of the applicable Revenue Payment or report. HER will act in good faith to resolve all timely reported inaccuracies fairly. Resolution will be at HER's sole discretion and all decisions are final.
7. TERM; SUSPENSION, CANCELLATION AND/OR TERMINATION
7.1 The initial term of this Agreement ("Term") shall be as set forth in the first Order Form. This Agreement shall remain in effect for as long as there is an active Order Form. Upon expiration or termination of all active Order Forms, this Agreement shall automatically terminate without any further action by either party.
7.2 In addition to and without prejudice to any termination rights set forth in any Order Form, HER, in its sole discretion, may (i) suspend or terminate your account and suspend all ad serving or any portion thereof at any time, without prior notice to you, for a violation of the terms of this Agreement or for any other reason that we believe may adversely affect HER, our Advertising Partners or the integrity of our HERadx and (ii) terminate any Order Form or this Agreement without cause upon written notice.
8. DISCLAIMER OF WARRANTIES; NO GUARANTEE
THE NETWORK (INCLUDING THE ADS) IS PROVIDED "AS IS" AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OUT OF A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT (INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT OF THIRD PARTY RIGHTS), QUALITY, PRODUCTIVENESS OR CAPACITY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. HER, ITS SUPPLIERS, LICENSORS, AND ADVERTISING PARTNERS DO NOT WARRANT THAT THE NETWORK (INCLUDING THE ADS) WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NETWORK (INCLUDING THE ADS) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HER OR ITS ADVERTISING PARTNERS MAKE NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. HER OR ITS ADVERTISING PARTNERS SHALL NOT BE RESPONSIBLE FOR ANY ADS OR WEBSITES THAT ARE SERVED THROUGH OR LINKED FROM THE NETWORK. 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. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF BARGAIN HEREUNDER, AND HER WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.
9. LICENSES AND OWNERSHIP; ADVERTISING PARTNERS NON-SOLICIT
9.1. As between HER and Publisher, Publisher owns all rights in (i) the Sites and Site content, (ii) Publisher trademarks and (iii) any goodwill, derivative works, improvements and/or intellectual property rights associated with the foregoing. During the term of this Agreement, Publisher grants to HER a non-exclusive, royalty-free license to duplicate Site content and/or use Publisher's trademarks solely in order to exercise its rights and perform its obligations under this Agreement.
9.2. As between HER and Publisher, HER owns all right in (i) the HERadx (including the Ads), (ii) HER's trademarks and (iii) any goodwill, derivative works, improvements and/or intellectual property associated with the foregoing. During the term of this Agreement, HER grants Publisher a non-exclusive, non-transferable, non-sublicensable license to display Ads on Sites, solely as authorized under this Agreement.
9.3. Publisher will not copy, modify, distribute, sell, or lease the Ads or any other part of the HERadx, attempt to unlock or bypass any encryption or other protections used by HER or any initialization system, and will not provide Ads or access to the HERadx to any third party. Publisher will not use the HERadx or any information it receives under this Agreement to duplicate HER's HERadx or to develop a similar service, or to enable any third party to do any of the foregoing.
9.4. If Publisher develops or uses an alternative service that displays advertisements substantially similar to the Ads being provided by HER, Publisher shall actively monitor such alternative service to ensure that HER's rights are not being infringed.
9.5 You acknowledge the character of HER's business and the substantial amount of time, money and effort that HER has spent and will spend in acquiring, servicing, retaining and building relationships with, and developing Confidential Information relating to, HER's Advertising Partners. You agree that you will not throughout the term of this Agreement, and for one (1) year following its termination or expiration, alone or with others, directly or indirectly, except for the benefit of the Company: (A) solicit or cause to be solicited for the purpose of selling, developing, or supporting products or services substantially similar to or that compete with the HERadx for any Advertising Partner of the Company that placed Ads on your Sites pursuant to the terms of this Agreement within the 12 months preceding termination or expiration of this Agreement; or (B) induce, attempt to induce, encourage or attempt to persuade any Advertising Partner of the Company that placed Ads on your Sites pursuant to the terms of this Agreement within the 12 months preceding termination or expiration of this Agreement, to cease doing business with HER or to alter its business relationship or dealings with HER, or otherwise interfere with the relationship between the HER and such Advertising Partner. This Section 9.5 shall not apply to any Advertising Partners with whom you had an existing contractual relationship concerning placement of ads either as of the effective date of the applicable Order Form or in the thirty (30) calendar day immediately preceding the effective date of the applicable Order Form.
10. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) you maintain adequate rights in and to the Sites (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to engage in the HERadx, including without limitation the right to modify and create derivative works of any materials on Your Sites; and (ii) the Sites are and shall remain in full compliance with Sections 3.1 through 3.4 of this Agreement. You also represent and warrant that (a) all of the information provided by you to us to enroll in the HERadx is correct and current; (b) Publisher is the owner of each Site or you are legally authorized to act on behalf of the owner of such Sites for the purposes of this Agreement and the HERadx; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; (d) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations in your performance of any acts hereunder; and (e) each Site and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; and (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories.
You will defend, indemnify, and hold harmless HER, its representatives, and each of its Affiliates, and any Advertising Partners from damages, liabilities, costs, and expenses (including reasonable attorneys' fees) resulting from any claim, judgment, or proceeding brought by a Third Party and resulting from breach of the terms and conditions specified in this Agreement.
12. LIMITATION OF LIABILITY
WITH THE EXCEPTION OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY, IN NO EVENT WILL HER OR HER'S ADVERTISING PARTNERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, AND THE LIKE, INCURRED BY YOU ARISING FROM THIS AGREEMENT, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.) HER'S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID OR OWED BY HER TO PUBLISHER UNDER THE RELEVANT ORDER FORM IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO A CLAIM. The allocations of liability in this section represent the agreed and bargained-for understanding of the parties and the compensation for the services reflects such allocations. The limited remedies set forth in this Agreement shall apply notwithstanding the failure of their essential purpose.
13. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
"Confidential Information" means any information disclosed by HER to Publisher, either directly or indirectly in writing, orally or by inspection of tangible objects which is either (a) designated or marked as "Confidential" at the time of disclosure, or (b) disclosed under circumstances reasonably indicating that such information is confidential. Without limiting the foregoing, the Ad Code, Advertising Materials, all information relating to the Ad Code, and the data and information shared with you regarding the Revenue Payments (including all reports) shall be deemed to be Confidential Information. (i) Publisher agrees that it shall not use any Confidential Information other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by HER, (ii) Publisher shall use the same degree of care to protect Confidential Information as it uses to protect its own confidential information of similar value, but in no circumstances less than reasonable care, and (iii) Publisher shall not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with it consistent with this Section 13.
14.1. You may not resell, assign, or transfer any of your rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without HER's prior written approval will be null and void. All terms and conditions this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
14.2. This Agreement will be governed by the laws of the State of Arizona, without regard to any conflict of law provisions. You agree that any claims, legal proceedings, or litigation arising in connection with this Agreement will be brought solely in courts of Arizona, and the parties consent to the exclusive jurisdiction of such courts.
14.3. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, one business day if sent by overnight courier service, and, if sent electronically or by fax, upon return receipt acknowledgement. All notices to you will be sent to the most recent contact address you have provided us.
14.4. Publisher agrees not to make, disclose or publish, in non-public or public communications, any disparaging remarks or comments regarding HER's, its Affiliates, any of HER's Advertising Partners or any of their products or services, or any of the materials or information provided by HER to Publisher pursuant to this Agreement.
14.5. You agree that HER may use Publisher's name and logo on its website, in presentations, marketing materials and collaterals, customer lists and/or any financial reports.
14.6. The parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon either Party.
14.7 Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform (other than payment of money or breach of confidentiality requirements) if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond such party's control. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, failure of internet service providers, electrical failures, acts of war, earthquakes, fire and explosions.