These GoDesi.com Publisher Terms and Conditions (“Terms”), any addenda attached hereto, which are hereby incorporated by reference (“Addenda”), and any inventory purchase agreement entered into between the parties (“IPC”) (collectively, the “Agreement”), between GoDesi.com LLC and its affiliates, (“GoDesi.com”), and the individual or entity entering into this Agreement (“Publisher”) shall govern Publisher’s participation in the GoDesi.com Network. In the event of any inconsistency between the Terms, the Addenda and an IPC, the following order of precedence shall apply: the IPC, followed by the Addenda, followed by the Terms. Capitalized terms not defined herein shall have the meanings assigned to them in the Addenda.
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., which activity will be set forth in the IPC or in the associated online program.
“GoDesi.com Network” means the third party websites through which GoDesi.com 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 GoDesi.com 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 GoDesi.com, 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 GoDesi.com.
“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 GoDesi.com determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
“Marks” means a party’s trademarks, service marks, logos and trade dress.
“Net Revenue” means, with respect to any particular period of time, the amount invoiced by GoDesi.com 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, (v) Invalid Clicks, and (vi) data fees and management fees paid by advertisers to GoDesi.com in connection with AOP (GoDesi.com’s demand-side platform known as AdLearn Open Platform), as applicable.
“Network Tags” means scripts provided by GoDesi.com that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by GoDesi.com and request transmission from those servers of Creatives.
“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.
“Revenue Share” means, with respect to a campaign for which payment is based upon a percentage of Net Revenue, an amount equal to the product of (i) the Net Revenue during the applicable calendar month, multiplied by (ii) the applicable revenue share percentage payout rate.
“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.
“Sponsored Listings Network” means the third party websites through which GoDesi.com distributes Sponsored Listings Creatives.
“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 GoDesi.com (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 GoDesi.com based on such visitor's IP address.
“User Interface” means an online tool provided by GoDesi.com through which Publishers may access 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 located at http://www.iab.net/media/file/IAB-Video-Ad-Format-Standards.pdf.
“Video Network” means the third party websites through which GoDesi.com distributes Video Creatives.
a) Network Tags. GoDesi.com requires placement of Network Tags on the Publisher Websites participating in the GoDesi.com Network. 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, GoDesi.com 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:
Publisher recognizes that a breach of any of these conditions could result in immediate, extraordinary and irreparable damage to GoDesi.com and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by GoDesi.com, in its sole discretion, that Publisher has violated any of the foregoing conditions, Publisher agrees that GoDesi.com may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable
d) Prohibited Content. GoDesi.com 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; or (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. GoDesi.com reserves the right to reject or block any Publisher Page or Publisher Website at any time at its sole discretion.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, GoDesi.com retains all right, title and interest in and to the GoDesi.com Network, the technology utilized by GoDesi.com to operate the GoDesi.com Network, 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 GoDesi.com Network services.
a) General. Payment to Publisher shall initially be based on the payment terms and rates set forth in the applicable Addenda, IPC, or program selected by Publisher in the User Interface (e.g., CPM, CPC, CPA, Revenue Share). GoDesi.com may from time to time modify such payment rates based on its then-current rates upon providing written notice to Publisher. If Publisher has not signed an IPC or applicable Addenda containing a specific payout program rate, payment rates for Creatives will be based upon GoDesi.com’s then-current default RON (run of network) rates, as may be modified by GoDesi.com from time to time. Unless otherwise set forth in the applicable Addenda or IPC, payments shall be made by GoDesi.com no later than the 45th day after the end of the month in which revenue was earned by GoDesi.com. Publisher may be paid at the account level (i.e., if Publisher has multiple accounts, each account may be evaluated independently). No checks will be issued for any amounts less than $25 U.S.D. All un-issued earnings will roll over to the next pay period in which the amounts due exceed $25 U.S.D. Any dispute regarding a payment here under must be submitted to GoDesi.com in writing within sixty (60) days of such payment or it shall be deemed waived. To ensure timely payment, Publisher must notify GoDesi.com at firstname.lastname@example.org of any changes to its account information, including change of address, phone or email address.
b) Withholding Payment. GoDesi.com reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is either prohibited hereunder or is outside the scope of that which is permitted under this Agreement. 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.
c) Taxes. By participating in the GoDesi.com Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold GoDesi.com harmless from any such taxes. GoDesi.com 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 GoDesi.com 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. GoDesi.com 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 GoDesi.com’s sole discretion.
4. Counting. GoDesi.com shall have the responsibility in its sole and reasonable 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. Term; Termination. This Agreement shall terminate and renew in accordance with the term and termination provisions of the applicable Addenda and/or IPC. Upon termination, any licenses granted by GoDesi.com 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, GoDesi.com 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: 3, 6, 7, 8, 9, 10(ii) and 11 through 18.
7. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HERE UNDER, NEITHER PARTY WILL 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 THE PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HERE UNDER, IN NO EVENT WILL EITHER PARTY’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.
a) Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of GoDesi.com 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) (collectively, “Losses”) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) arising out of any material breach by Publisher of any term, condition, representation or warranty under this or any other agreement with GoDesi.com; (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Website (other than through a Creative supplied by GoDesi.com, unless such Creative was modified by Publisher without the express written consent of GoDesi.com); (iii) content on the Publisher Websites; or (iv) related to any violation of any intellectual property right or any other third party right, except for Creatives supplied by GoDesi.com, unless such Creatives were modified by Publisher without the express written consent of GoDesi.com.
b) GoDesi.com. GoDesi.com 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 Losses that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) arising out of a material breach by GoDesi.com of any term, condition, representation or warranty under this Agreement; (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from Creatives or code supplied by GoDesi.com; or (iii) related to any violation of any intellectual property right or other third party right in connection with Creatives supplied by GoDesi.com. Notwithstanding anything to the contrary in this Agreement, GoDesi.com shall not be obligated to indemnify Publisher or any other party to the extent a third party claim arises out of material modifications by Publisher to Creatives supplied by GoDesi.com without the express written consent of GoDesi.com.
c) Indemnification Procedures. Any claim for indemnification here under 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.
9. 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”). "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. 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.
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: (i) is known to or in the possession of Recipient prior to its disclosure to Recipient hereunder, as evidenced by the Recipient's written records; (ii) 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; (iii) 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, GoDesi.com 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 GoDesi.com’s business and marketing purposes.
10. Marks Usage. Publisher authorizes GoDesi.com to disclose its membership in the GoDesi.com Network and grants GoDesi.com a non-exclusive, worldwide, royalty-free right and license to use, reproduce and display: (i) Publisher’s Marks in connection with GoDesi.com’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. Publisher may not disclose its membership in the GoDesi.com Network or use GoDesi.com’s Marks without the prior written consent of GoDesi.com.
11. Entire Agreement; Assignment. This Agreement, as and if amended, and the associated IPC, shall constitute the entire and only agreement between the parties regarding Publisher’s participation in the GoDesi.com Network, 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 or any IPC without the prior written consent of GoDesi.com, 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.
12. 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, statute, ordinance, rules and regulations relevant to the performance of its obligations under this Agreement.
c) GoDesi.com. GoDesi.com 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, statute, ordinance, rules and regulations relevant to the performance of its obligations under this Agreement.
13. Modifications. GoDesi.com 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 GoDesi.com Network after the effective date of such change shall be deemed Publisher's acceptance of the revised Terms.
14. Warranties; Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, 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.
15. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York without regard to its conflict of law principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of New York, New York in connection with any action arising between the parties.
16. 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.
17. 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, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure”).
18. Notices. Notices may be provided via e-mail, fax, or other written means and will be effective immediately.
DISPLAY NETWORK AND VIDEO NETWORK ADDENDUM
The following addendum supplements the Terms and applies to the delivery of Display Creatives and Video Creatives.
1. Content; Availability of Inventory. In the event that Publisher materially changes the Publisher Website content after approval into the GoDesi.com Network, Publisher must send written notice to GoDesi.com of the changes immediately. Notices should be sent to Publisher’s Account Manager or to email@example.com. Publisher’s participation in the GoDesi.com Network is non-exclusive and all inventory is preemptible at Publisher’s sole discretion.
2. Delivery and Suspension of Advertising Campaigns. GoDesi.com may fill Impressions with Creatives offered by GoDesi.com or by third party partners. All delivery shall be subject to frequency capping and targeting parameters established by GoDesi.com, and Publisher agrees that GoDesi.com 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. Publisher shall activate the Network Tags no later than thirty (30) days after execution of this Agreement or the associated IPC. Publisher shall not remove the Network Tags for more than thirty (30) consecutive days during the term of this Agreement or the associated IPC. In the event that GoDesi.com determines that Publisher violated one or more of the foregoing sentences in this Section 2, GoDesi.com may, at its option, revert to a lower payment rate to Publisher.
3. Provision of Impressions. Unless otherwise agreed by GoDesi.com in writing, Publisher shall ensure that there are no Spikes in the number of Impressions delivered to GoDesi.com during a given calendar month, and GoDesi.com, 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 set forth in the applicable Addenda or IPC 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.
4. Payment and Reporting. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics regarding Display Creatives shall be available to Publisher online at http://godesi.com/advertise/login.php?who=p. Publisher acknowledges that in some cases, GoDesi.com will need to make adjustments to reported statistics due to specific contractual provisions (e.g., bonuses), Invalid Clicks, statistical errors, or third party tracking provided by advertisers or their agencies.
5. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the GoDesi.com Network. Unless otherwise set forth in the associated IPC, either party may terminate this Agreement or the associated IPC at any time, for any reason whatsoever, upon written notice to the other party.