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Advertising Terms and Conditions
To
advertise on any Profit Clinic web site that accepts
text ads you must agree to these terms and conditions. Placement
of a text advertisement via our system signifies that you understand
and accept these terms and conditions and agree to be bound
by them.
If
your advertisement breaches these terms and conditions, we have
the right to terminate the offending ad without notice and without
refund. You have the right to substitute another text advertisement
that complies with these terms and conditions. If your substitute
advertisement is found to be in breach, it may be terminated
and you forfeit your payment and any right to place another
substitute advertisement.
These
Terms and Conditions ("Terms") are entered into by,
as applicable, the customer signing these Terms or any document
that references these Terms or that accepts these Terms electronically
("Customer") and The Profit Clinic ("Profit Clinic").
These Terms govern The Profit Clinic's advertising program(s)
("Program") as further described in the applicable
Program's web site at www.profitclinicstore.com/TextAds/ (the "Site")
and, as applicable, Customer's participation in any such Program(s),
Customer's online management of any advertising campaigns ("Online
Management") and/or any insertion orders or service agreements
("IO") executed by and between the parties (together
the "Agreement"). Profit Clinic and Customer hereby
agree and acknowledge:
1 Policies. Program use is subject to all applicable
Profit Clinic and Partner ad specification requirements and
policies, including without limitation the Editorial Guidelines,
Content Guidelines, Landing Page and Site Quality Guidelines,
Trademark and Intellectual Property Guidelines, and Privacy
Policy (collectively, "Policies"). Policies may be
modified at any time. Customer shall direct all communications
regarding Customer ads on Partner Properties only to The Profit
Clinic. To the fullest extent permitted by law, the Text Ad
service is provided "as is" and at Customer's option
and risk. Profit Clinic may modify ads to comply with any Policies
applicable at the time of modification.
2
The Program. Customer is solely responsible for all: (a)
ad content, ad information, placements and ad URLs ("Creative"),
whether generated by or for Customer; and (b) web sites, services
and landing pages which Creative links or directs viewers to,
and advertised services and products (collectively "Services").
Customer shall protect any Customer passwords and takes full
responsibility for Customer's own, and third party, use of any
Customer accounts. Ads may be placed on any content or property
specifically provided for this purpose by Profit Clinic ("Profit
Clinic Property"), and unless opted-out by Customer any
other content or property provided by a third party ("Partner")
upon which Profit Clinic places ads ("Partner Property").
With respect to Text Ads advertising found to be in breach of
the Terms, Profit Clinic may send Customer an email notifying
Customer it has 72 hours ("Modification Period") to
modify content as posted. The account (as modified by Customer
otherwise as initially posted) is deemed approved by Customer
after the Modification Period, and Profit Clinic is only liable
to Customer for discrepancies if Customer can certify by contemporaneous
documentary evidence that Profit Clinic posted ads not approved
by Customer. Customer grants Profit Clinic permission to utilize
an automated software program to retrieve and analyze websites
associated with the Services for ad quality and serving purposes,
unless Customer specifically opts out of the evaluation in a
manner specified by Profit Clinic. Profit Clinic or Partners
may reject or remove any ad at any time for any or no reason.
Profit Clinic may modify the Program or these Terms at any time
without liability and your use of the Program after notice that
Terms have changed indicates acceptance of the Terms.
3 Cancellation.
Customer may independently cancel advertising itself online through Customer's
account, if any, or, if such online cancellation functionality is not available,
with prior written notice to Profit Clinic, including electronic mail. Text Ads cancelled
online will cease serving shortly after cancellation. Profit Clinic may cancel immediately
any IO, any of its advertising Programs, or these Terms at any time with notice,
in which case Customer will be responsible for any ads already run. Profit Clinic
may modify any of its advertising Programs at any time without liability. Sections
1, 2, 3, 5, 6, 7, and 8 will survive any expiration or termination of this Agreement.
4 Prohibited Uses;
License Grant; Representations and Warranties. Customer shall not, and shall
not authorize any party to: (a) generate automated, fraudulent or otherwise invalid
impressions, inquiries, conversions, clicks or other actions; (b) use any automated
means or form of scraping or data extraction to access, query or otherwise collect
Profit Clinic advertising related information from any Text Ads website or property
except as expressly permitted by Profit Clinic; or (c) advertise anything illegal
or engage in any illegal or fraudulent business practice. Customer represents and
warrants that it holds or has obtained from the relevant persons unconditional and
irrevocable consents permitted by applicable laws to any act or omission that would
otherwise infringe such person's moral rights and hereby grants Profit Clinic and
Partners all rights (including without limitation any copyright, trademark, patent,
publicity or other rights) in Creative and Services needed for Profit Clinic and
Partner to operate Profit Clinic's advertising programs for Customer (including without
limitation any rights needed to host, cache, route, transmit, store, copy, modify,
distribute, perform, display, reformat, excerpt, analyze, and create algorithms from
and derivative works of Creative) in connection with this Agreement. or has obtained
from the relevant persons, waivers permitted by applicable laws of respective moral
rights for the benefit of Profit Clinic and Partner.
5 ("Use").
Customer represents and warrants that all required Customer information is complete,
correct and current; and any Use hereunder and Customer's Creative and Customer's
Services will not violate or encourage violation of any applicable laws, regulations,
code of conduct, or third party rights (including, without limitation, intellectual
property rights). Violation of the foregoing may result in immediate termination
of this Agreement or customer's account without notice and may subject Customer to
legal penalties and consequences.
6 Disclaimer
and Limitation of Liability. (a) To the fullest extent permitted
by law, and subject to section 5, PROFIT CLINIC DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND
FITNESS FOR ANY PURPOSE. To the fullest extent permitted by
law, Profit Clinic disclaims all guarantees regarding positioning
or the levels or timing of: (i) costs per view, (ii) click through
rates, (iii) availability and delivery of any impressions, Creative,
or placement on any Partner Property, Profit Clinic Property,
or section thereof, (iv) clicks, (v) conversions or other results
for any ads or placements (vi) the accuracy of Partner data
(e.g. reach, size of audience, demographics or other purported
characteristics of audience), and (vii) the adjacency or placement
of advertisements within a Program. EXCEPT FOR INDEMNIFICATION
AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND CUSTOMER'S BREACHES
OF SECTION 1, to the fullest extent permitted by law and subject
to section 5: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES , LOSS OF
PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF
DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER'S BUSINESS
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER
LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO
THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO PROFIT CLINIC
BY CUSTOMER FOR THE AD GIVING RISE TO THE CLAIM. Except for
payment obligations, neither party is liable for failure or
delay resulting from a condition beyond the reasonable control
of the party, including but not limited to acts of God, government,
terrorism, natural disaster, labor conditions and power failures.
(b) CERTAIN LEGISLATION, INCLUDING THE TRADE PRACTICES ACT 1974(CTH),
MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS UPON
PROFIT CLINIC WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED
OR CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED
EXTENT. THIS AGREEMENT MUST BE READ SUBJECT TO THESE STATUTORY
PROVISIONS. IF THESE STATUTORY PROVISIONS APPLY, TO THE EXTENT
TO WHICH PROFIT CLINIC IS ABLE TO DO SO, ITS LIABILITY UNDER
THOSE PROVISIONS WILL BE LIMITED, AT ITS OPTION, TO (c) THE
SUPPLYING OF THE SERVICES AGAIN; OR (d) THE PAYMENT OF THE COST
OF HAVING THE SERVICES SUPPLIED AGAIN.
7 Agency. Customer represents and warrants that (a) it
is authorized to act on behalf of and has bound to this Agreement
any third party for which Customer advertises (a "Principal"),
(b) as between Principals and Customer, the Principal owns any
rights to Program information in connection with those advertisements,
and (c) Customer shall not disclose Principal's Program information
to any other party without Principal's consent.
8 Payment. Customer shall be responsible for all charges
up to the amount of each IO, or as set in an online account,
and shall pay all charges in Australian Dollars or in such other
currency as agreed to in writing by the parties. Unless agreed
to by the parties in writing, Customer shall pay all charges
in accordance with the applicable IO or Program FAQ. Late payments
bear interest at the rate of 1.5% per month (or the highest
rate permitted by law, if less). Charges are exclusive of taxes.
Customer is responsible for paying all taxes, government charges,
and reasonable expenses and attorneys fees Profit Clinic incurs
collecting late amounts. To the fullest extent permitted by
law and subject to section 5, Customer waives all claims relating
to charges unless claimed within 60 days after the charge (this
does not affect Customer's credit card issuer rights). Charges
are solely based on Profit Clinic's measurements for the applicable
Program, unless otherwise agreed in writing. To the fullest
extent permitted by law, refunds (if any) are at the discretion
of Profit Clinic and only in the form of advertising credit
for only Profit Clinic Properties. Nothing in these Terms or
an IO may obligate Profit Clinic to extend credit to any party.
Customer acknowledges and agrees that any credit card and related
billing and payment information that Customer provides to Profit
Clinic may be shared by Profit Clinic with companies who work
on Profit Clinic's behalf, such as payment processors and/or
credit agencies, solely for the purposes of checking credit,
effecting payment to Profit Clinic and servicing Customer's
account. Profit Clinic 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. Profit Clinic shall not be liable
for any use or disclosure of such information by such third
parties.
9 Indemnification. Customer shall indemnify and defend
Profit Clinic, its Partners, agents, affiliates, and licensors
from any third party claim or liability (collectively, "Liabilities"),
arising out of Use, Customer's Program use, Placements, Creative
and Services and breach of the Agreement. Partners shall be
deemed third party beneficiaries of the above Partner indemnity.
10 Miscellaneous. The Agreement must be construed as
if both parties jointly wrote it, governed by Australian law
except for its conflicts of laws principles and adjudicated
in Melbourne, Victoria, Australia. The Agreement constitutes
the entire agreement between the parties with respect to the
subject matter hereof, and supersedes and replaces any other
applicable agreements, terms and conditions applicable to the
subject matter hereof. Any conflicting or additional terms contained
in additional documents (e.g. reference to a purchase order
number) or oral discussions are void. Each party shall not disclose
the terms or conditions of these Terms to any third party, except
to its professional advisors under a strict duty of confidentiality
or as necessary to comply with a government law, rule or regulation.
Customer may grant approvals, permissions, extensions and consents
by email, but any modifications by Customer to the Agreement
must be made in a writing executed by both parties. Any notices
to Profit Clinic must be sent to The Profit Clinic at its current
registered place of business (see www.profitclinic.com/legal, with a copy to Legal Department,
via certified mail, with a copy sent via first class or air
mail or overnight courier, and are deemed given upon receipt.
Notice to Customer may be effected by sending email to the email
address specified in Customer's account, and is deemed received
when sent (for email) or no more than 15 days after having been
posted. A waiver of any default is not a waiver of any subsequent
default. Unenforceable provisions will be modified to reflect
the parties' intention and only to the extent necessary to make
them enforceable, and remaining provisions of the Agreement
will remain in full effect. Customer may not assign any of its
rights hereunder and any such attempt is void. Profit Clinic
and Customer and Profit Clinic and Partners are not legal partners
or agents, but are independent contractors. In the event that
these Terms or an Advertising Program expire or is terminated,
Profit Clinic shall not be obligated to return any materials
to Customer.
November 10, 2006
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