Terms and Conditions
This Agreement (the “Agreement”) is entered into by and between You(“Publisher” and Adsage LLC(“SiteSpeaker”,”the Advertising Platform”). This Agreement shall govern the SiteSpeaker Network and the SiteSpeaker Advertising Program (the “Program”) and Your use, agreement, and relationship with SiteSpeaker, and the Program. The Agreement consists of the SiteSpeaker Standard Terms and Conditions (the “Terms”), and the SiteSpeaker Compliance Policies and Guidelines. “You”, “Your”, or “Publisher” shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement.
Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by SiteSpeaker from time to time, SiteSpeaker hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives certain users the ability to participate as a Publisher (website owner). SiteSpeaker is a website widget that makes web voices provided by browsers and online service providers more easily accessible across devices. SiteSpeaker can provide no guarantees or assurance that voices will be available in the future. This may mean a language or voice becomes unavailable on only a subset of platforms or unavailable on all platforms. If a voice becomes unavailable it will be removed from our list of supported voices. Participation in the Program as a Publisher is at your own risk.
2. THE AGREEMENT.
The “Complete Agreement” is comprised of the terms and conditions for publishers. This Complete Agreement constitutes a binding agreement between the Publisher and the Advertising Platform.
- The term “Ad Block” shall mean any mechanism(s), software, browser extension(s) or application(s) that allows or in any way facilitates the ability of a viewer of Publisher’s URL(s) to block SiteSpeaker’s Ad Unit(s) or Content placed on the Publisher’s URL(s).
- The term “Adjusted Revenue” shall mean the income earned and received by the Advertising Platform through SiteSpeaker’s Ad Unit(s) distribution via the Publisher’s URL(s) during the Term of Agreement less direct costs which include transaction fees, commissions, refunds, chargebacks and collection costs which shall not exceed more than 10% of the unadjusted revenue.
- The term “Applicable Laws” shall mean the law of the state of California and any other applicable federal, state and foreign laws or regulations, Children's Online Privacy Protection Rule ("COPPA") and California Consumer Privacy Act.
- The term “Confidential Information” shall mean any information that includes technical information or plans concerning services provided under this Complete Agreement and information disclosed by one party to the other party that is confidential or should reasonably be assumed to be confidential under the circumstances. Confidential Information does not include information that is:
Generally known to the public through no fault of either the Advertising Platform or the Publisher;
Rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality;
Independently developed by the receiving party without the use of the disclosing party’s information; and
Rightfully obtained by the receiving party from a third-party that has no duty of confidentiality to the effected party.
- The term “Content” shall mean any graphical, textual, and/or auditory media which may include text, data, information, photos, images, graphics, audio or video.
- The term “CPM” or “Cost Per Thousand Impressions” shall mean the price paid by the Advertising Platform to the Publisher for the display of SiteSpeaker’s Ad Unit(s) one thousand times.
- The term “Cost” shall mean the amount the Advertising Platform is obligated to pay to the Publisher as compensation for the services rendered to the Publisher under the conditions chosen by the Publisher in the SiteSpeaker Dashboard or as in the corresponding Insertion Order(s).
- The term “SiteSpeaker’s Ad Unit(s)” shall mean the space(s) on the Publisher URL(s) where one or more advertisements are displayed via integrated Advertising Platforms code through Publisher’s URL(s) in order to monetize internet traffic.
- The term “SiteSpeaker Dashboard” shall mean the Advertising Platform’s web-based Advertising Platform’s proprietary analytics dashboard containing statistics and other vital functions.
- The term “Placement” shall mean the Content placed on the Publisher’s URL(s).
- The term “Platform” shall mean the Advertising Platform’s proprietary technologies for monetizing online traffic with the Platform serving as the broker or intermediary between the Publisher and the Advertising Platform.
- The term “Publisher” shall mean the entity accepting the Complete Agreement, and/or the entity named in any and all Insertion Order(s) and any of its Affiliate(s) that execute any Insertion Order(s), that displays SiteSpeaker’s Ad Unit(s) on the Publisher’s URL(s).
- The term “Publisher’s URL(s)” shall mean the applicable Publisher’s domain(s), sub-domain(s), web page(s), application(s) and/or platform(s).
- The term “Recommendations” shall mean the display of the Content that the Advertising Platform delivers to the viewer of Publisher’s URL(s).
- The term “Traffic Fraud” shall mean:
- The artificial inflation of clicks or impressions on the Recommendations;
- The use of bots or automated means of generating impressions;
- The encouragement in any way of a third-party to click on the Recommendations using incentives or other similar methods of generating traffic on the Recommendations;
- The use of any non-human impressions, including crawlers and parsers; and
- The use any auto-refresh functions for additional revenue accrual visits to the Publisher’s URL(s) which occur without knowledge or genuine intent of a user or driven by non-human actors.
- The term “VPN” shall mean the use of a Virtual Private Network which hides the user’s IP address by letting the network redirect the user’s IP address through a specially configured remote server run by a Virtual Private Network host.
Upon accessing the SiteSpeaker Network or participating, registering, and/or enrolling in the Program, You affirmatively represent and warrant that You are at least 18 years of age and hereby agree that SiteSpeaker may serve third party and/or SiteSpeaker provided advertisements, campaigns, offers, promotional materials, and/or other content, including, but not limited to, sponsored links, images, videos, ad boxes, search results, throughout the world wide web and/or in relation to the Web site(s), media player(s), music player(s), video players(s), video content, music content, mobile content, and/or devices that You designate, or such other properties that may become available to SiteSpeaker from time to time (collectively referred to herein as “Property” and/or “Website”), and RSS, or other feeds distributed through such Website. Each of SiteSpeaker and Publisher shall, at all times during the Term, comply with its respective published privacy and cookie policies and disclosures. Each of SiteSpeaker and Publisher shall further ensure that its website and, as to Publisher, all of the Publisher Websites, include prominently posted privacy and cookie policies as applicable that describe in a legally sufficient manner the personal data that it collects, how it uses and shares such personal data, and how users and visitors can opt out of such use in accordance with applicable privacy laws. The Publisher grants the Advertising Platform the right to interact with the Publisher’s URL(s) for the purposes of developing and serving of Content to the viewer of the Publisher’s URL(s). The Publisher agrees that each Placement is governed by the Complete Agreement.
SiteSpeaker will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. SiteSpeaker may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of Articles. You shall not alter the code, link, script, programming, pixel, Article, content, and/or data provided to You by SiteSpeaker without the prior express written consent of SiteSpeaker.
5. PUBLISHER DUTIES.
You are solely responsible for Your Website(s) and/or Property(ies), including all content and materials, maintenance and operation thereof; the proper implementation of SiteSpeaker specifications; adherence to the terms of this Agreement; all applicable laws, rules, regulations, statutes, and ordinances; compliance with all terms, conditions and requirements of any source of web traffic to your website(s); and any SiteSpeaker rule, policy, or procedure. You hereby grant SiteSpeaker the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this Agreement, or any engagement in any activity prohibited by this Agreement. SiteSpeaker shall not be liable or responsible for anything related to You or Your Websites, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your Websites, or the transmission of any information or data between You, Your Website, and SiteSpeaker. In addition, all Articles are provided on an “AS IS” or “AS AVAILABLE” basis and SiteSpeaker makes no warranty or representation that such Articles will be available, delivered, or work properly. SiteSpeaker is not required to notify You of any problems or issues relating to the SiteSpeaker Network, the Program, or the Articles.
5.1 The Advertising Platform agrees to provide the Publisher with access to the SiteSpeaker Dashboard to access reports and to carry out other functions provided by the dashboard contingent upon the Publisher’s adherence to the Complete Agreement.
5.2 The Advertising Platform agrees to provide to the Publisher access to the daily reports via SiteSpeaker’s Dashboard. The Final Report which may or may not differ from the unadjusted report(s) will be either provided within ten (10) business days of each reporting period or within a period specified by the applicable Insertion Order(s).
5.3 The Final Report will provide the conclusive basis for calculation of the actual Fees charged to the Advertising Platform for the services rendered to the Publisher under the Complete Agreement.
5.4 The Publisher agrees to work in good faith with the Advertising Platform in the event of a discrepancy of over fifteen percent (15%) between the Advertising Platform’s Final Report and the data obtained by the Publisher. If any dispute arises under this clause, the Advertising Platform and the Publisher shall seek to resolve any such dispute between them by negotiating promptly with each other in good faith and carrying out comprehensive internal investigations.
Approved Publishers shall be permitted to participate in the Program and receive served Audio from SiteSpeaker for publication on Publisher’s Website(s) and/or Property(ies). SiteSpeaker will specify the amount and terms under which You will earn payment (“Bounties”). Bounties are generated from a specified transaction (“Action”) as defined by SiteSpeaker. Actions can include, without limitation, clicks, click-throughs, sales, registrations, impressions and leads. The applicable Action associated with each campaign and/or Your account shall be set forth in the applicable terms listed on the SiteSpeaker Network and, unless otherwise specified, such shall be subject to change at the sole and absolute discretion of SiteSpeaker. If You accept Audio to run on your Website(s), You agree to adhere to any specific policies, procedures, and specifications associated with those Articles, and operate at all times in accordance with the Agreement. SiteSpeaker may, at its sole discretion, change the Audio or the terms of a campaign at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in the Program at any time, unless otherwise specified in this Agreement or other terms associated with the campaign. SiteSpeaker is responsible for displaying and administrating the Program and tracking associated Bounties and Actions. Program data compiled by SiteSpeaker including, but not limited to, numbers and calculations regarding Actions and associated Bounties (“Program Data”), will be calculated by SiteSpeaker through the use of tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing seven (7) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service and/or SiteSpeaker Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of SiteSpeaker or which are not reasonably foreseeable by SiteSpeaker including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Publisher acknowledges and agrees that SiteSpeaker has no control over the availability of the Program, Services, and SiteSpeaker Network on a continuous or uninterrupted basis. Terms of the Agreement are subject to SiteSpeaker hardware, software, and bandwidth traffic limitations. SiteSpeaker’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
7. TERMS OF PAYMENT.
You agree to be paid the applicable Bounty rate for each Action verified by SiteSpeaker as specified by SiteSpeaker approximately sixty (60) days after the last day of a given calendar month, for Bounties realized in that month, subject to a reduction based on SiteSpeaker’s expenses associated with the delivery of any traffic to advertisers which would have otherwise been blocked by ad block software. You agree that payment for Bounties will be owed to You from the applicable Advertiser, and that corresponding payments shall be made by SiteSpeaker to You out of the funds actually collected by SiteSpeaker from the applicable Advertiser. SiteSpeaker shall have no payment obligation to Publisher where Advertiser has not remitted sufficient payments to cover the Bounties otherwise due and owing Publisher. All Publisher accounts will be paid in United States dollars ($US). Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Publisher that total less than Five Hundred Dollars ($500.00) (“Payment Threshold”). Upon termination of the Agreement, all legitimate moneys due to Publisher that are actually collected from the applicable Advertiser, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Publisher account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number, or other applicable unique government identification. All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Publisher is responsible for all applicable taxes (including without limitation VAT) with respect to Payments received from SiteSpeaker and will on request provide a VAT invoice for any payments made to it by SiteSpeaker if so requested by SiteSpeaker.
An Advertiser may request that SiteSpeaker, or SiteSpeaker may on its own initiative, debit from the Bounties otherwise due and owing Publisher an amount equal to a Bounty previously credited to Publisher’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Program Terms (collectively referred to as a “Chargeback”). Chargebacks requested by an Advertiser in accordance with this Section may be applied up to one hundred and twenty (120) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). An Advertiser may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the Action); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by SiteSpeaker, shall be final and binding on Publisher. The parties expressly acknowledge, confirm, and agree that, at all times during Your participation in the Program, SiteSpeaker specifically reserves the right to determine whether purported impressions and/or other Actions are in fact valid and give rise to SiteSpeaker payment obligations pursuant to these Terms and Conditions and the terms of any applicable Insertion Order(s). This determination shall be made at SiteSpeaker’s sole and absolute discretion, and may be made in consideration of the geographic location of users or any other factors deemed relevant by SiteSpeaker in making such determination. Definition of Revenue for Revenue Share Arrangements: In the event the parties agree to a revenue share arrangement, SiteSpeaker will pay you a revenue share based on “Net Revenue” which is defined as the gross revenue received by SiteSpeaker as a result of valid clicks, less adjustments for chargebacks, commissions, direct cost charged to SiteSpeaker by third party providers, discounts allowed, refunds and administrative fees, and bad debt deductions.
SiteSpeaker actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If SiteSpeaker suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by SiteSpeaker, You will forfeit all of the Bounties related to that Program, and Your Publisher account will be terminated effective immediately. SiteSpeaker reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to SiteSpeaker that it has NOT engaged in fraud. SiteSpeaker will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to SiteSpeaker that You have not engaged in fraud. If You are unable to provide SiteSpeaker with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Bounties being placed in “Pending Status,” then SiteSpeaker reserves the right to terminate Your Publisher account and cancel payment on the applicable Bounties, at its sole discretion and without any further obligations to You. The Publisher agrees not to:
- obscure the Advertising Platform’s Content or SiteSpeaker’s Ad Units;
- minimize, remove or otherwise inhibit the full and complete display of the advertising materials;
- artificially inflate clicks or impressions;
- use any non-human impressions, including crawlers and parsers;
- restrict access in any way to the Publisher URL(s) which contain or should reasonably contain SiteSpeaker Ad Unit(s); and
- use any auto-refresh functions for additional revenue accrual.
8.1 If the Advertising Platform reasonably determines that the Publisher engaged in Traffic Fraud, the Publisher must provide adequate evidence to sufficiently disproves any indicia of Traffic Fraud. The Advertising Platform’s determination of the fraudulency of delivered impressions shall be final thereby absolving the Advertising Platform from its responsibility for making payments on the fraudulent impressions. If the Advertising Platform had already paid for internet traffic later determined to be fraudulent, the Advertising Platform may use the already paid amount against future fees owed to the Publisher.
8.2 The Publisher agrees not to employ any mechanism(s) to cloak, hide, or obscure in any way the place of origination of impressions referred to the Publisher URL(s). Any misrepresentation of the place of origination of impressions referred to the Publishers URL(s) shall constitute a material breach of this Agreement.
8.3 The Publisher may not deploy on any Publisher URL(s) content that:
- display adult, obscene, pornographic, defamatory, libelous, abusive, or illegal content;
- promote racism, violence, hate or discrimination;
- facilitate the sale of firearms, the promotion of terrorism, the sale of illegal drugs and the promotion of criminal activities;
- contain content that promotes activities that are understood or seen as internet abuse including but not limited to the use of spyware, use of corrupted file(s) virus(es), or the use of any other materials that are intended to damage or render inoperable software or hardware;
f) violate United States economic sanctions or trade restrictions.
Any violation of this section relating to the content or the Recommendations deployed on any Publisher URL(s) constitutes a material breach of this Agreement.
8.4 The Advertising Platform reserves the right to disable Publisher’s URL(s) with or without any perquisite warning if the Publisher breaches Section 4.4 (relating to content or Recommendations deployed on any Publisher URL(s)) of this Complete Agreement. The Advertising Platform reserves the right to suspend any payments to the Publisher until Section 8.4 violation of the Complete Agreement is completely cured.
8.5 The process of delivery of Advertising Platform’s Recommendations via SiteSpeaker’s Ad Unit(s) to the Publisher URL(s) is an indivisible product. The Publisher may not employ any mechanism(s), software, browser extension(s) or application(s) on the Publisher URL(s) to interfere, augment, or change in any way the indivisible product provided by the Advertising Platform of delivery of the Recommendations via SiteSpeaker’s Ad Unit(s) to the Publisher URL(s). Any violation of this section constitutes a material breach of the Complete Agreement with the Advertising Platform reserving the right to suspend any payments to the Publisher until this violation is completely cured.
In addition, SiteSpeaker reserves the right, in its sole and absolute discretion, to terminate You from the Program at any time for any reason, without notice to You. SiteSpeaker also reserves the right to terminate Your access to the SiteSpeaker Network at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Website(s) and/or Property(ies) any and all Articles, content, materials, and SiteSpeaker Code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and obligations of Publisher contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
Publisher hereby represents and warrants that it: (a) has read SiteSpeaker’s policies and guidelines, as same are made available at https://help.SiteSpeaker.com/knowledge; (b) will regularly check the SiteSpeaker.com website and the SiteSpeaker Network for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same. Publisher’s failure to comply with the aforementioned policies and guidelines will be considered a breach of the Agreement and may result in the immediate termination of the Agreement by SiteSpeaker.
11. PROMOTIONAL USE.
SiteSpeaker may, from time to time, use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and search results. You may request in writing to use SiteSpeaker's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of SiteSpeaker.
12. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that (a) all of the information provided by You to SiteSpeaker to enroll in the Program true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each Website and/or Property or that You are legally authorized to act on behalf of the owner of such Website and/or Property 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 Articles) for the purposes of this Agreement and the Program; and (2) You shall ensure that any media player(s) 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; (iii) fully comply with all terms, conditions and requirements of any source of web traffic to you website(s); and (iv) are not pornographic, hate-related or otherwise violent in content.
You shall indemnify, defend and hold SiteSpeaker, its agents, advertisers, 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, demand for payment, 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.
14. SITESPEAKER RIGHTS.
SiteSpeaker owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including SiteSpeaker's ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by SiteSpeaker 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 SiteSpeaker 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 SiteSpeaker's copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any SiteSpeaker services, software, or documentation (including without limitation the display of any SiteSpeaker or third party Articles). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, 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.
15. INFORMATION AND DATA COLLECTION.
16. DISCLAIMER AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL SiteSpeaker BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SiteSpeaker NETWORK, THE PROGRAM, THE DIRECTSELL AD SERVER, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CONTENT ON OR THROUGH YOUR PUBLISHER WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF SiteSpeaker HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SiteSpeaker’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). PUBLISHER AND SiteSpeaker SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, PUBLISHER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST SiteSpeaker MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SiteSpeaker NETWORK, CREATIVES, CONTENT, CODE, SCRIPT, PROGRAMS, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SiteSpeaker NETWORK, CREATIVES, THE PROGRAM, CODE, SCRIPT, THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. SiteSpeaker HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE SiteSpeaker NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, AND/OR THE SERVICE AND DELIVERY OF THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND SiteSpeaker DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY THE PROGRAM OR ANY OF THE ARTICLES WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN SiteSpeaker AND PUBLISHER. THE SiteSpeaker NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, THE SERVICE AND DELIVERY OF ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. SiteSpeaker MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SiteSpeaker NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM SiteSpeaker AND/OR ANY ADVERTISER BY AND THROUGH THE SiteSpeaker NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
SiteSpeaker may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of SiteSpeaker, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in SiteSpeaker, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to SiteSpeaker. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
18. SEVERABILITY WAIVER.
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the SiteSpeaker Network, the Program, or the terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by SiteSpeaker, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by SiteSpeaker; (b) becomes publicly known and made generally available after disclosure to You by SiteSpeaker other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by SiteSpeaker as shown by Your files and records prior to the time of disclosure. SiteSpeaker’s Program rates are considered “Confidential Information.” You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain SiteSpeaker's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to SiteSpeaker immediately upon SiteSpeaker's request.
21. FORCE MAJEURE.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Articles, delivery system, SiteSpeaker Network, and/or the Program. You may not take any action that imposes an unreasonable or disproportionately large load on the SiteSpeaker infrastructure. You agree that any unauthorized and/or unlawful use of the SiteSpeaker Network, the Program, Service, Creatives, and/or Code will result in irreparable injury to SiteSpeaker for which monetary damages would be inadequate. In such event, SiteSpeaker shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to SiteSpeaker, to the address listed in the Contact section of the SiteSpeaker Network.
25. ENFORCEMENT OF AGREEMENT ; CHOICE OF LAW
In the event that enforcement of this Agreement becomes necessary (whether suit be brought or not), the prevailing party shall be entitled to recover from the other party, in addition to all other remedies available at law, an amount equal to all costs and expenses incurred in connection with such enforcement, including reasonable attorney fees at the trial level and in connection with all appellate proceedings. This Agreement and all instruments or documents related thereto shall be construed in accordance with the laws of the State of California. In the event of any legal or equitable action arising under this Agreement, the parties agree that jurisdiction and venue of such action shall lie exclusively within the state courts of California located in Los Angeles County, California, or the United States District Court located in Los Angeles County and the parties specifically waive any other jurisdiction and venue.
This Complete Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior agreements or understandings, written or oral, relating to its subject matter. The Advertising Platform and the Publisher agree to use their respective best, diligent and good faith efforts to fulfill all their obligations under the Complete Agreement. The Advertising Platform and the Publisher recognize however, that to effectuate all the purposes of the Complete Agreement, it may be necessary either to enter into future agreements or to modify the Complete Agreement or both, specifically with the use of future Insertion Order(s). For example, and without limitation, the Advertising Platform and the Publisher agree that as technology and needs of parties develop, they may desire to expand this Complete Agreement to cover the changes. In such event, the Parties agree to cooperate with each other in good faith to properly execute amendments to this Complete Agreement.
The failure of either the Advertising Platform or the Publisher to enforce strict performance of any of the provision of the Complete Agreement or failure to exercise any right under the Complete Agreement shall not be construed as a waiver of that party’s right under the Complete Agreement.
The Advertising Platform shall have a right to withhold and offset any payments owed to the Publisher under the Complete Agreement against any current or future sums the Publisher owns to the Advertising Platform under present or any other present or future agreement.
Should any section or part of a section within the Complete Agreement be rendered void or unenforceable by any court of competent jurisdiction shall not have an impact on the enforceability or validity of any other clause or a part of clause. Any unenforceable or invalid clause shall be regarded as removed from this Complete Agreement to the extent of its unenforceability and invalidity. Therefore, this Complete Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.
All notices under the Complete Agreement shall be in writing and either delivered by personal service, by confirmed email, by express courier, or by certified mail with return receipt requested to the address of the receiving party as set forth in the Insertion Order(s) or at such address as may be designated by the Advertising Platform and the Publisher via written notice to the other party or via the SiteSpeaker Dashboard. All notices under this Complete Agreement will be effective upon receipt.
The Complete Agreement creates an independent contract relationship between the Advertising Platform and the Publisher, and neither party will be deemed to be an employee, agent, partner, or legal representative of the other. Neither Advertising Platform nor the Publisher will have any right, power or authority to create any obligation or responsibility on behalf of the other unless explicitly stated in this Complete Agreement.
This Complete Agreement may be executed in multiple counterparts, each of which will be considered to be an original, but all of which together will constitute one and the same instrument
27. LICENSING TERMS OF SERVICE
SiteSpeaker is purchased on an annual basis and renews automatically.
27.1 SiteSpeaker can be canceled anytime after purchase. Client will be charged full annual rate.
27.2 Under the Commercial License, you are not allowed to create applications that can be described as a development toolkit or library, an application builder, a website builder, or any application that is intended for use by software, application, or website developers or designers. If you are concerned about this prohibition, you can discuss getting a Custom Use license by contacting us.
27.3 Consultants and systems integrators that develop applications must ensure that the third parties for which they develop are licensed for the Software. In some cases, you can transfer your license to the third party, and in other cases third parties will need to have their own Commercial License.