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Portal
261 Terms and Conditions
PLEASE
READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE FAQ BEFORE
REGISTERING FOR THE PORTAL 261 ONLINE PROGRAM. PARTICIPATION IN
THE PORTAL 261 ONLINE PROGRAM INDICATES THAT YOU ACCEPT THESE
TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND
CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE
PORTAL 261 ONLINE PROGRAM.
Introduction.
This agreement ("Agreement")
between You and Portal 261. ("P261")
consists of these Portal 261 Online Program (the "Program")
Standard Terms and Conditions ("Terms
and Conditions").
A description of the Program, as generally offered by P261, is
available at the Program Frequently Asked Questions ("FAQ")
URL, located at http://www.portal261.com,
or such other URL as P261 may provide from time to time. "You"
or "Publisher"
means any entity identified in an enrollment form submitted by the
same or affiliated persons, and/or any agency or network acting on
its (or their) behalf, which shall also be bound by the terms of
this Agreement.
1.
Program
Participation. Participation
in the Program is subject to P261's prior approval and Your
continued compliance with the Program Policies ("Program
Policies"),
located at http://www.portal261.com,
and/or such other URL as P261 may provide from time to time. P261
reserves the right to refuse participation to any applicant or
participant at any time in its sole discretion. By enrolling in
the Program, You represent that You are at least 18 years of age
and agree that P261 may serve (a) third party and/or P261 provided
advertisements and/or other content (such third party provided
advertisements, P261 provided advertisements and other content,
collectively, "Ads").
Multiple accounts held by the same individual or entity are
subject to immediate termination unless expressly authorized in
writing by P261 (including by electronic mail). In some
circumstances expressly authorized in writing by P261 (including
by electronic mail). You must have and abide by an appropriate
privacy policy that clearly discloses that third parties may be
placing and reading cookies on your users’ browser, or using web
beacons to collect information, in the course of ads being served
on your website. Your privacy policy should also include
information about user options for cookie management.
2.
Implementation
and Operation of Ads, Search Results, and Referrals. You
agree to comply with the specifications provided by P261 from time
to time to enable proper delivery, display, tracking, and
reporting of Ads, Links, Search Results, Referral Buttons, and
P261 Brand Features.
3.
Communications
Solely With P261.
You agree to direct to P261, and not to any advertiser, any
communication regarding any Ad(s) or Link(s) displayed in
connection with Your Property(ies).
4.
Parties'
Responsibilities.
You are solely responsible for the Property(ies). P261 is not
responsible for anything related to Your Property(ies), including
without limitation the receipt of queries from end users of Your
Property(ies) or the transmission of data between Your
Property(ies) and P261. In addition, P261 shall not be obligated
to provide notice to You in the event that any Ad, Link, Search
Result, or Referral Button is not being displayed properly to, or
Referral Event is not being completed properly by, end users of
the Property(ies).
5.
Prohibited
Uses.
You shall not, and shall not authorize or encourage any third
party to: (i) directly or indirectly generate queries, Referral
Events, or impressions of or clicks on any Ad, Link, Search
Result, or Referral Button (including without limitation by
clicking on “play” for any video Ad) through any automated,
deceptive, fraudulent or other invalid means, including but not
limited to through repeated manual clicks, the use of robots or
other automated query tools and/or computer generated search
requests, and/or the unauthorized use of other search engine
optimization services and/or software; (ii) edit, modify, filter,
truncate or change the order of the information contained in any
Ad, Link, Ad Unit, Search Result, or Referral Button, or remove,
obscure or minimize any Ad, Link, Ad Unit, Search Result, or
Referral Button in any way without authorization from P261; (iii)
frame, minimize, remove or otherwise inhibit the full and complete
display of any Web page accessed by an end user after clicking on
any part of an Ad ("Advertiser
Page"),
any Search Results Page, or any Referral Page; (iv) redirect an
end user away from any Advertiser Page, Search Results Page, or
Referral Page; provide a version of the Advertiser Page, Search
Results Page, or Referral Page that is different from the page an
end user would access by going directly to the Advertiser Page,
Search Results Page, or Referral Page; intersperse any content
between the Ad and the Advertiser Page, between the page
containing the Search Box and the Search Results Page, or between
the Referral Button and the Referral Page; or otherwise provide
anything other than a direct link from an Ad to an Advertiser
Page, from the page containing the Search Box to the Search
Results Page, or from the Referral Button to the Referral Page;
(v) display any Ad(s), Link(s), or Referral Button(s) on any Web
page or any Web site that contains any pornographic, hate-related,
violent, or illegal content; (vi) directly or indirectly access,
launch, and/or activate Ads, Links, Search Results, or Referral
Buttons through or from, or otherwise incorporate the Ads, Links,
Search Results, or Referral Buttons in, any software application,
Web site, or other means other than Your Property(ies), and then
only to the extent expressly permitted by this Agreement; (vii)
"crawl", "spider", index or in any
non-transitory manner store or cache information obtained from any
Ads, Links, Search Results, or Referral Events, or any part, copy,
or derivative thereto; (viii) act in any way that violates any
Program Policies posted on the P261 Web Site, as may be revised
from time to time, or any other agreement between You and P261
(including without limitation the P261 program terms); (ix)
disseminate malware; (x) create a new account to use the Program
after P261 has terminated this Agreement with You as a result of
your breach of this Agreement; or (xi) engage in any action or
practice that reflects poorly on P261 or otherwise disparages or
devalues P261's reputation or goodwill. You acknowledge that any
attempted participation or violation of any of the foregoing is a
material breach of this Agreement and that we may pursue any and
all applicable legal and equitable remedies against You, including
an immediate suspension of Your account or termination of this
Agreement, and the pursuit of all available civil or criminal
remedies.
6.
Termination;
Cancellation.
Subject to any third party agreements You may have with other P261
customers (e.g., Your Web hosting company), You may stop
displaying Ads, Links, Search Boxes, or Referral Buttons on any
Property in the Program with or without cause at any time by
removing the DNS entry to our servers or similar programming from
Your Properties. You may terminate this Agreement with or without
cause at any time by sending written notice of your desire to
cancel Your participation in the Program to support@portal261.com.
This Agreement will be deemed terminated within ten (10) business
days of P261's receipt of Your notice. P261 may investigate any
activity that may violate this Agreement. P261 may at any time, in
its sole discretion, terminate all or part of the Program,
terminate this Agreement, or suspend or terminate the
participation of any Property in all or part of the Program for
any reason. In addition, P261 reserves the right to terminate
without notice any account that has not generated a sufficient
number of valid clicks on Ads or Referral Buttons or valid
impressions of Ads (in each case as measured by P261) for a period
of two (2) months or more. Upon termination of participation of
any Property in the Program or termination of this Agreement for
any reason, Sections 3, 6 through 10, and 14 through 17 shall
survive termination.
7.
Confidentiality.
You agree not to disclose P261 Confidential Information without
P261's prior written consent. "P261
Confidential Information"
includes without limitation: (a) all P261 software, technology,
programming, specifications, materials, guidelines and
documentation relating to the Program; (b) click-through rates or
other statistics relating to Property performance in the Program
provided to You by P261; and (c) any other information designated
in writing by P261 as "Confidential" or an equivalent
designation. However, You may accurately disclose the amount of
P261’s gross payments to You pursuant to the Program. P261
Confidential Information does not include information that has
become publicly known through no breach by You or P261, or
information that has been (i) independently developed without
access to P261 Confidential Information, as evidenced in writing;
(ii) rightfully received by You from a third party; or (iii)
required to be disclosed by law or by a governmental authority.
8.
No
Guarantee.
P261 makes no guarantee regarding the level of impressions of Ads
or clicks on any Ad or Referral Button, the timing of delivery of
such impressions and/or clicks, the completion of Referral Events,
or the amount of any payment to be made to You under this
Agreement. In addition, for
the avoidance of doubt, P261 does not guarantee the Program will
be operable at all times or during any down time (i) caused by
outages to any public Internet backbones, networks or servers,
(ii) caused by any failures of Your equipment, systems or local
access services, (iii) for previously scheduled maintenance or
(iv) relating to events beyond P261’s (or its wholly owned
subsidiaries’) control such as strikes, riots, insurrection,
fires, floods, explosions, war, governmental action, labor
conditions, earthquakes, natural disasters, or interruptions in
Internet services to an area where P261 (or its wholly owned
subsidiaries) or Your servers are located or co-located.
9.
No
Warranty. P261
MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION WITH RESPECT TO ADVERTISING, LINKS, SEARCH, REFERRALS,
AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR
CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR
ANY PARTICULAR PURPOSE. TO THE EXTENT ADS, LINKS, AND SEARCH
RESULTS ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-P261
CONTENT, P261 SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE
DISPLAY OF SUCH ADS, LINKS, AND SEARCH RESULTS.
10.
Limitations
of Liability; Force Majeure.
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS
HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS
AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO
EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY
CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY AND (ii) P261'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS
AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY P261
TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING
THE DATE OF THE CLAIM. Each party acknowledges that the other
party has entered into this Agreement relying on the limitations
of liability stated herein and that those limitations are an
essential basis of the bargain between the parties. Without
limiting the foregoing and except for payment obligations, neither
party shall have any liability for any failure or delay resulting
from any condition beyond the reasonable control of such party,
including but not limited to governmental action or acts of
terrorism, earthquake or other acts of God, labor conditions, and
power failures.
11.
Payment.
You shall receive a payment related to the number of valid clicks
on Ads, the number of valid impressions of Ads, the number of
valid completions of Referral Events initiated through Referral
Buttons displayed in connection with Your Property(ies), and/or
other events performed in connection with the display of Ads on
Your Property(ies), in each case as determined by P261 for its
participants in the Program. If You have elected to receive Search
Results, this payment will be offset by fees applicable to Search
Results. Unless otherwise agreed to by the parties in writing
(including by electronic mail), payments to You shall be sent by
P261 within approximately thirty (60) days after the end of each
calendar month that Ads or Referral Buttons are running on Your
Property or that Ads are running on Search Results Pages if Your
earned balance is $100 or more. In the event the Agreement is
terminated, P261 shall pay Your earned balance to You within
approximately ninety (120) days after the end of the calendar
month in which the Agreement is terminated by You (following
P261's receipt of Your written request, including by email, to
terminate the Agreement) or by P261. In no event, however, shall
P261 make payments for any earned balance less than $10.
Notwithstanding the foregoing, P261 shall not be liable for any
payment based on: (a) any amounts which result from invalid
queries, invalid Referral Events, or invalid clicks or impressions
on Ads generated by any person, bot, automated program or similar
device, as reasonably determined by P261, including without
limitation through any clicks or impressions (i) originating from
Your IP addresses or computers under Your control, (ii) solicited
by payment of money, false representation, or request for end
users to click on Ads, or (iii) solicited by payment of money,
false representation, or any illegal or otherwise invalid request
for end users to complete Referral Events; (b) Ads or Referral
Buttons delivered to end users whose browsers have JavaScript
disabled; (c) Ads benefiting charitable organizations and other
placeholder or transparent Ads that P261 may deliver; or (d)
clicks co-mingled with a significant number of invalid clicks
described in (a) above, or as a result of any breach of this
Agreement by You for any applicable pay period. P261 reserves the
right to withhold payment or charge back Your account due to any
of the foregoing or any breach of this Agreement by You, pending
P261's reasonable investigation of any of the foregoing or any
breach of this Agreement by You, or in the event that an
advertiser whose Ads are displayed in connection with Your
Property(ies) defaults on payment for such Ads to P261. In
addition, if You are past due on any payment to P261 in connection
with any P261 program, P261 reserves the right to withhold payment
until all outstanding payments have been made or to offset amounts
owed to You in connection with the Program by amounts owed by You
to P261. To ensure proper payment, You are solely responsible for
providing and maintaining accurate address and other contact
information as well as payment information associated with Your
account. For U.S. taxpayers, this information includes without
limitation a valid U.S. tax identification number and a
fully-completed Form W-9. For non-U.S. taxpayers, this information
includes without limitation either a signed certification that the
taxpayer does not have U.S. Activities or a fully-completed Form
W-8 or other form, which may require a valid U.S. tax
identification number, as required by the U.S. tax authorities.
Any bank fees related to returned or cancelled checks due to a
contact or payment information error or omission may be deducted
from the newly issued payment. You agree to pay all applicable
taxes or charges imposed by any government entity in connection
with Your participation in the Program. P261 may change its
pricing and/or payment structure at any time. If You dispute any
payment made under the Program, You must notify P261 in writing
within thirty (30) days of any such payment; failure to so notify
P261 shall result in the waiver by You of any claim relating to
any such disputed payment. Payment shall be calculated solely
based on records maintained by P261. No other measurements or
statistics of any kind shall be accepted by P261 or have any
effect under this Agreement. The payments made under this
Agreement are for use by You only and may not be transferred or in
any manner passed on to any third party (i.e., distributed to
Properties managed by You that require separate payments) unless
expressly authorized in writing by P261 (including by electronic
mail). From time to time P261 may be holding funds, payments and
other amounts due to You in connection with the P261 Program. You
acknowledge and agree that P261 may, without further notice to
You, contribute to a charitable organization selected by P261 all
funds, payments and other amounts related to the P261 Program that
are held by P261 and that are due to you (if any), but which P261
is unable to pay or deliver to You because Your account is
Inactive (as defined below). “Inactive” means that, based on
P261’s records: (a) for a period of two (2) years or more You
have not logged into your account or accepted funds, payments or
other amounts that P261 has attempted to pay or deliver to You,
and (b) P261 has been unable to reach You, or has not received
adequate payment instructions from You, after contacting You at
the address shown in P261’s records.
12.
Publicity.
You agree that P261 may use Your name and logo in presentations,
marketing materials, customer lists, financial reports, Web site
listings of customers, Search Results Pages, and Referral Pages.
If You wish to use P261's trade names, trademarks, service marks,
logos, domain names, and other distinctive brand features ("Brand
Features"),
You may do so, so long as such use is in compliance with this
Agreement and in compliance with P261's then current Brand Feature
use guidelines, and any content contained or referenced therein,
or such other URL P261 may provide from time to time.
13.
Representations
and Warranties.
You represent and warrant that (a) all of the information provided
by You to P261 to enroll in the Program is correct and current;
(b) You are the owner of each Property or You are legally
authorized to act on behalf of the owner of such Property(ies) for
the purposes of this Agreement and the Program; (c) You have all
necessary right, power, and authority to enter into this Agreement
and to perform the acts required of You hereunder; and (d) You
have complied and will continue to comply with all applicable
laws, statutes, ordinances, and regulations (including without
limitation the CAN-SPAM Act of 2003 and any relevant data
protection or privacy laws) in Your performance of any acts
hereunder. In addition, to the extent that Your Site is a media
player (1) You represent and warrant that You have a valid license
to use and distribute such media player (including all content
therein, including without limitation any Ads or Ad Units) for the
purposes of this Agreement and the Program; and (2) You shall
ensure that any media player(s) that constitute the Site shall
comply with the terms and conditions set forth herein. You further
represent and warrant that each Property and any material
displayed therein: (i) comply with all applicable laws, statutes,
ordinances, and regulations; (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; and
(iii) are not pornographic, hate-related or otherwise violent in
content.
14.
Your
Obligation to Indemnify.
You agree to indemnify, defend and hold P261, its agents,
affiliates, subsidiaries, directors, officers, employees, and
applicable third parties (e.g. relevant advertisers, syndication
partners, licensors, licensees, consultants and contractors)
(collectively "Indemnified
Person(s)")
harmless from and against any and all third party claims,
liability, loss, and expense (including damage awards, settlement
amounts, and reasonable legal fees), brought against any
Indemnified Person(s), arising out of, related to or which may
arise from Your use of the Program, the Property(ies), and/or Your
breach of any term of this Agreement.
15.
P261
Rights. You
acknowledge that P261 owns all right, title and interest,
including without limitation all Intellectual Property Rights (as
defined below), in and to the Program (including P261's ad serving
technology, search technology, referral technology, and Brand
Features, including implied licenses, and excluding items licensed
by P261 from third parties and excluding any third party media
player that may comprise the Property), and that You will not
acquire any right, title, or interest in or to the Program except
as expressly set forth in this Agreement. You will not modify,
adapt, translate, prepare derivative works from, decompile,
reverse engineer, disassemble or otherwise attempt to derive
source code from any P261 services, software, or documentation, or
create or attempt to create a substitute or similar service or
product through use of or access to the Program or proprietary
information related thereto. You will not remove, obscure, or
alter P261's copyright notice, Brand Features, or other
proprietary rights notices affixed to or contained within any P261
services, software, or documentation. "Intellectual
Property Rights"
means any and all rights existing from time to time under patent
law, copyright law, semiconductor chip protection law, moral
rights law, trade secret law, trademark law, unfair competition
law, publicity rights law, privacy rights law, and any and all
other proprietary rights, as well as, any and all applications,
renewals, extensions, restorations and re-instatements thereof,
now or hereafter in force and effect worldwide.
16.
Information
Rights.
P261 may retain and use, subject to the terms of the P261 Privacy
Policy (located at http://www.portal261.com/privacy.html,
or such other URL as P261 may provide from time to time), all
information You provide, including but not limited to Property
demographics and contact and billing information. You agree that
P261 may transfer and disclose to third parties personally
identifiable information about You for the purpose of approving
and enabling Your participation in the Program, including to third
parties that reside in jurisdictions with less restrictive data
laws than Your own. P261 may also provide information in response
to valid legal process, such as subpoenas, search warrants and
court orders, or to establish or exercise its legal rights or
defend against legal claims. P261 disclaims all responsibility,
and will not be liable to You, however, for any disclosure of that
information by any such third party. P261 may share
non-personally-identifiable information about You, including
Property URLs, Property-specific statistics and similar
information collected by P261, with advertisers, business
partners, sponsors, and other third parties. In addition, You
grant P261 the right to access, index and cache the Property(ies),
or any portion thereof, including by automated means including Web
spiders or crawlers.
17.
Miscellaneous.
This
Agreement shall be governed by the laws of Utah, except for its
conflicts of laws principles. Any dispute or claim arising out of
or in connection with this Agreement shall be adjudicated in Utah
County, Utah The parties specifically exclude from application to
the Agreement the United Nations Convention on Contracts for the
International Sale of Goods and the Uniform Computer Information
Transactions Act. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. Any
modifications to this Agreement must be made in a writing executed
by both parties, by Your online acceptance of updated terms, or
after Your continued participation in the Program after such terms
have been updated by P261. The failure to require performance of
any provision shall not affect a party's right to require
performance at any time thereafter, nor shall a waiver of any
breach or default of this Agreement constitute a waiver of any
subsequent breach or default or a waiver of the provision itself.
If any provision herein is held unenforceable, then such provision
will be modified to reflect the parties' intention, and the
remaining provisions of this Agreement will remain in full force
and effect. You may not resell, assign, or transfer any of Your
rights hereunder. Any such attempt may result in termination of
this Agreement, without liability to P261. Notwithstanding the
foregoing, P261 may assign this Agreement to any affiliate at any
time without notice. The relationship between P261 and You is not
one of a legal partnership relationship, but is one of independent
contractors.
2009-01-05
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