THE FOLLOWING IS A COPY OF PUBLISHER CONTEXTUAL SERVICES AGREEMENT THAT SETS FORTH THE TERMS AND CONDITIONS THAT YOU MUST AGREE TO BEFORE USING THE QUIGO ADSONAR SERVICE. AFTER YOU HAVE SUBMITTED AN ENROLLMENT FORM TO QUIGO AND HAVE RECEIVED A USER NAME AND PASSWORD, YOU WILL BE PRESENTED WITH A VERSION OF THIS AGREEMENT THAT SETS FORTH THE PERCENTAGE OF NET REVENUE THAT QUIGO WILL PAY TO YOU.
PUBLISHER CONTEXTUAL SERVICES AGREEMENT
IMPORTANT, PLEASE READ CAREFULLY THE FOLLOWING, BEFORE SUBMITTING THE ENROLLMENT FORM FOR THE QUIGO ADSONAR SERVICE (AS DEFINED BELOW). BY SUBMITTING THE ENROLLMENT FORM YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WARRANTY DISCLAIMERS, LIMITATION OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT SUBMIT THE ENROLLMENT FORM FOR THE QUIGO CONTEXTUAL SERVICES PROGRAM.
This Publisher Contextual Services Agreement (the "Agreement") is a binding and valid legal agreement between the entity submitting an enrollment form for participation in the Quigo Contextual Services Program ("Publisher") and Quigo Technologies, Inc., a Delaware corporation ("Quigo"), for the utilization by Publisher of Quigo's proprietary technology and functionality for determining content of web pages and matching and serving relevant Ads to those pages (the "AdSonar Service").
1. Definitions. As used herein, the following capitalized terms shall have the respective meaning assigned to them: (a) "Ad" means a reference to an Advertiser website, that includes a link to such website, and is included in an Ad Block; (b) "Ad Block" means a unit containing one or more Ads, that was created by Quigo in response to a Query and served by Quigo for display to an End User visiting Publisher Pages. The number of Ads to be included in an Ad Block is set forth in the enrollment form that Publisher has submitted to Quigo; (c) "Advertiser" means a person or entity who is offering products, content, information and/or services on the Internet, who is a party to an agreement with Quigo or its affiliates for the display thereof on Publishers' Websites, and who has agreed to pay Quigo for every time an End User links to its website as a direct result of a click on an Ad; (d) "Advertiser Pages" mean the web pages of an Advertiser website, which are displayed through the AdSonar Service as a result of clicking on an Ad; (e) "Click Through Revenue" means revenue actually collected and received by Quigo, which results directly from End User click-throughs on Ads on the Ad Block, excluding any bad debt and chargebacks and revenue from Prohibited Clicks Generation; (f) "Contextual Access Code" means an HTML code provided by Quigo to Publisher, to be applied by Publisher to the Publisher Pages in accordance with the instructions contained within Quigo's Publisher Administration Tool; (g) "End User" means a human Internet end user of the Publisher Website, excluding, for the removal of doubt, methods described under "Prohibited Clicks Generation"; (h) "Prohibited Clicks Generation" means clicks resulting 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 Quigo determines, in its sole discretion, to be fraudulent in nature, or resulting from incentives or misleading or coercive means; (i) "Publisher Pages" mean the Web pages on the Publisher Website that contain Qualified Content, on which Publisher desires to display the Ad Blocks; (j) "Publisher Website" means a website(s) owned and operated by Publisher; (k) "Qualified Content" means content in the English language or any other language mutually agreed upon, in textual format (as opposed to flash, graphics, Java applets, Java script or other non-textual format); (l) "Query" means a page view of a Publisher Page generated by an End User; (m) "Quigo House Ad" means (i) an Ad Block from Quigo's generic index, which is category based and therefore may or may not be contextually related to a specific Publisher Page, or (ii) if Publisher so elected, Publisher's created ads, which Publisher will provide to Quigo in accordance with Quigo's guidelines, as such shall be in effect from time to time and contained in Quigo's Publisher Administration Tool ("Publisher Created Ad"); and (n) "Quigo's Publisher Administration Tool" means the Publisher Administration Tool that Quigo will provide Publisher an access to during the term of this Agreement.
2. Contextual Access Code; Publisher Website Crawl.
2.1 Quigo will provide Publisher the Contextual Access Code, and Publisher will apply such Contextual Access Code on Publisher Pages. Publisher understands and agrees that the Contextual Access Code must be applied by Publisher to the Publisher Pages, in order for such pages to be processed and served hereunder. Publisher may not (i) apply the Contextual Access Code with respect to any specific Publisher Page, in a manner that will result in such Publisher Page being associated with more than (A) three (3) inline Ad Blocks, (B) one (1) pop-up window Ad Block, and (C) one (1) pop-under window Ad Block, or (ii) alter or modify the content of the Contextual Access Code. Publisher further agrees not to fraudulently or purposely manipulate the content of the Publisher Pages, including without limitation, "ghosting", "cloaking" or providing misleading metatags in order to "fool" the AdSonar Service so that it provides less contextually relevant results.
2.2 Quigo may, in its sole discretion, perform, prior to the provision by it of the AdSonar Service to Publisher, an initial crawl of the Publisher Website ("Cache Initiation").
2.3 Quigo is not responsible if the Publisher Website cannot be crawled and/or if Quigo is unable to provide the AdSonar Service to Publisher Website for technical or any other reasons and/or to any aspect of the Publisher Created Ad. Quigo is not responsible in any manner to Publisher Website, including its content, functionality, Ads display, or any other aspect thereof.
3. Initial URL Process. When Quigo receives a Query with respect to a certain Publisher Page for the first time, Quigo shall utilize the AdSonar Service to determine the relevant Qualified Content on the corresponding Publisher Page and send Quigo House Ad for display to the End User visiting that Publisher Page (the "Initial URL Process").
4. Ad Blocks' Display and Access. Once Quigo has concluded the Initial URL Process with respect to a specific Publisher Page, each time Publisher sends Quigo a Query for that Publisher Page, Quigo will match its then current Ad index to keywords relevant to the Qualified Content on that Publisher Page (as determined in the Initial URL Process), create a relevant Ad Block and send it for display to the End User visiting that Publisher Page. Quigo will make commercially reasonable efforts to inform Publisher if the AdSonar Service is disrupted for an extended period.
Publisher will: (a) display (i) the complete content of any Ad Block and pursuant to the format and other terms and conditions contained in this Agreement and will not (A) alter, modify, edit, change or filter in any manner such content, or (B) remove, delete, obscure, reduce visibility of (including by applying similar colors to font and background), distract access to, change the size of or otherwise change, the Ad Block or any Ad included therein, (ii) the Ad Blocks and their content exactly in the order and manner provided by Quigo (i.e., the first Ad shown on the Publisher Page will be the first Ad provided by Quigo, the second Ad shown on the Publisher Page will be the second Ad provided by Quigo etc.), and (iii) the Ad Block only within the Internet browser (and not as a result of actions of toolbar or other software application). Publisher may use a procedure specified in Quigo's Publisher Administration Tool to filter up to two hundred (200) websites (in the aggregate) which it deems competitive, and the ads of such filtered websites will not be displayed through the Ad Blocks on Publisher Pages. Publisher understands and agrees that filtering websites might result in fewer Ad Blocks sent to Publisher and/or in fewer Ads in each Ad Block and/or in lower cost-per-click rates and lower overall revenue for Publisher; (b) not display the Ad Blocks in connection with (i) any web page that is libelous or defamatory or promotes hate, violence, racism, or other "undesirable" actions or materials or contains adult related materials or violates any law or regulation or infringe or dilute in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party or breach any duty toward or rights of any person or entity, or (ii) error page or any email; (c) make reasonable efforts (i) to display the Ad Blocks above the fold on the Publisher Pages, or, if Publisher is unable to display the Ad Blocks in such location, it will make reasonable efforts to assure that the number of clicks on the Ad Blocks will be similar to the number of clicks on such Ad Blocks had such Ad Blocks were displayed above the fold, (ii) to assure that substantially all of the impressions of Publisher Pages are to End Users located in the USA, and (iii) to deliver only quality traffic to Quigo; (d) not use the Ad Blocks or any Ad (or the content of any of them) for any purpose other than displaying the same on the Publisher Website; (e) not copy, cache, store or otherwise keep in its possession or under its control the Ad Blocks and/or any other key or index describing the relation between the URL of a Publisher Page and the Ads contained in the related Ad Block, and not frame any Advertiser Page which was accessed by an End User clicking on an Ad; (f) make reasonable efforts to stop "bots" or "spiders" or any other methods of Prohibited Clicks Generation from initiating requests for search results or executing click-throughs on the Ad Blocks content, and not act, either directly or indirectly, to encourage or require End Users, either willingly or unwillingly, to click on Ad Blocks content and/or to generate click-throughs through any means that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent; (g) Provide Quigo at least ten (10) days advance notice of any expected increase in average daily Queries above fifteen percent (15%) of the then current average Queries on all Publisher Pages; and (h) Follow Quigo's guidelines relating to the display of the Ad Blocks, as such guidelines shall be in effect from time to time.
5. Relationship With Advertisers. All communications and inquiries with Advertisers shall be made by Publisher through Quigo, and Publisher agrees not to communicate directly with the Advertisers.
6. Proprietary Rights; Confidentiality.
6.1 As between Quigo and Publisher, Quigo is the sole and exclusive owner of all right, title and interest in and to the AdSonar Service and the technology associated with the AdSonar Service. Publisher will not assert copyright, trademark or other intellectual property ownership or proprietary rights in the AdSonar Service or the technology associated with the AdSonar Service. Quigo reserves all rights not expressly granted in this Agreement.
6.2 Publisher grants to Quigo, solely in connection with providing the AdSonar Service, a limited, non-transferable, worldwide, royalty-free license to cache, reproduce, distribute, publicly perform and publicly display the relevant content on the URLs of Publisher Pages and to reproduce, distribute, publicly perform and publicly display the Publisher Created Ad. Publisher represents and warrants to Quigo that Publisher Created Ad is not libelous or defamatory or promotes hate, violence, racism, or other "undesirable" actions or materials or contains adult related materials or violates any law or regulation or infringe or dilute in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party or breach any duty toward or rights of any person or entity.
6.3 Publisher shall keep in strict confidence and shall not use or disclose any information about Quigo, its technology, business activities and operations and its trade secrets (the "Confidential Information"). Confidential Information does not include any information to the extent that it: (a) is or becomes available through no act or omission on the part of the Publisher; (b) is disclosed to Publisher by a third party having no obligation with respect thereto; (c) is independently developed by Publisher's employees (as evidenced by Publisher's written records) who do not have and have not had access to the Confidential Information; or (d) is released from confidential treatment by written consent of Quigo. In addition, if Publisher is required to disclose the Confidential Information or any part thereof to a tribunal or governmental or regulatory agency, then Publisher will notify Quigo prior to such disclosure to allow it to obtain protective orders maintaining the confidentiality of such information. Further, Publisher shall not issue any press release or other public statements regarding this Agreement or the relationship between the parties hereunder without the prior written consent of Quigo.
6.4 Quigo may use and share any aggregate information (i.e. information that does not relate specifically to Publisher) which it has collected or received in providing the AdSonar Service, but only to the extent necessary to perform, enhance or improve the AdSonar Service and/or for Quigo's internal business purposes. Further, Quigo may use Publisher's name and logo ("Publisher Trademarks") in its marketing materials and customer lists. All use of the Publisher Trademarks shall be in accordance with Publisher's written trademark guidelines and shall inure to the benefit of Publisher.
7. Payment. Within thirty (30) days of the end of the calendar month during which Quigo collects any Click Through Revenue, Quigo will pay to Publisher a percentage of Net Revenue (as defined below) set forth in the version of the Agreement that is presented to Publisher after Publisher receives a user name and password, minus any applicable withholdings. If the payment due to Publisher is less than US$100, then due payment will be accrued until the next calendar month in which the balance of the payments to Publisher exceeds US$100. Any dispute regarding a payment from Quigo hereunder must be submitted to Quigo in writing within thirty (30) days of postage date of such payment or it shall be deemed waived. Payment shall be calculated and finally settled solely based on records maintained by Quigo, and no other records will be deemed relevant for payment calculations or determinations. "Net Revenue" means the total Click Through Revenue less: (a) any fee or revenue share paid out to a list partner, advertiser referral partner or affiliate, index partner, search list provider or other entity providing revenue generating listings to the network; (b)standard serving and operational support costs and (c) any applicable withholdings. Quigo may ignore click-throughs and/or withhold charge or credit back payments to Publisher, if Quigo, in its sole and absolute discretion, believes that the click throughs related to them are fraudulent or invalid in nature or if Quigo was charged or credited back in their respect by the Advertiser. Quigo makes commercially reasonable efforts to display in the Publisher reporting an accurate revenue projection, but for the removal of doubt, Quigo does not guarantee the amounts, if any, to be paid to Publisher as a result of this Agreement, and all amounts paid to Publisher hereunder will be strictly based on the Net Revenues actually collected by Quigo.
8. Reports. Quigo will provide Publisher, solely for informational purposes, access to its on-line reporting system, on which Publisher may view the number of impressions on Publisher Pages, the number of Ads served on Publisher Pages and the number of click-throughs on such Ads.
9. Representations and Warranties. Publisher represents and warrants that (i) it has full power and authority to enter into this Agreement and perform its obligations under this Agreement, (ii) it is the owner of, and is legally authorized to act on, the Publisher Website, (iii) it has not been refused to be served or terminated by any other contextual service provider, (iv) the Publisher Pages and the Publisher Web Site are not libelous, defamatory, or promote hate, violence or racism or adult related materials or violate any law or regulation or infringe or dilute in any manner any copyright, patent, trademark, trade secret or any other intellectual property or other third party right.
10. Indemnification; Liability.
10.1 Publisher shall indemnify, defend and hold Quigo harmless from and against any and all third party claims, actions, losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys' and other professionals' fees) arising out of or relating to (a) the breach of any express warranty or representation made by the Publisher, or (b) the breach by Publisher of any obligation under this Agreement.
10.2 THE ADSONAR SERVICE ARE MADE AVAILABLE TO PUBLISHER "AS IS" AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. ALTHOUGH QUIGO WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE RELEVANT ADS ARE SERVED TO END USERS VISITING PUBLISHER PAGES, PUBLISHER UNDERSTANDS AND AGREES THAT THE PROCESS DESCRIBED IN SECTIONS 3 AND 4 IS BEING AFFECTED BY AUTOMATED MEANS, AND QUIGO IS NOT RESPONSIBLE, NOR DOES IT GIVE ANY WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF SUCH PROCESS. QUIGO DOES NOT GUARANTEE THAT IT WILL HAVE RELEVANT AD FOR ANY GIVEN PUBLISHER PAGE AND QUIGO DOES NOT WARRANT OR GUARANTEE THAT THE ADSONAR SERVICE OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET PUBLISHER'S NEEDS.
10.3 (A) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES AND 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, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT WILL QUIGO'S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WILL EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT TO PUBLISHER DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. Quigo is not responsible for any web sites that can be linked to from the Ads. Quigo shall not be responsible to the results of any act or omission of any Advertiser or any other Quigo provider.
11. Term and Termination. Each party may at anytime, upon twenty-four (24) hours written notice: (i) terminate the AdSonar Service to any Publisher Website, or (ii) terminate this Agreement in its entirety. In the event that Quigo terminates this Agreement because Publisher has materially breached any of the provisions, in addition to all of the other remedies available to it, Quigo may withhold any payments owed to Publisher pursuant to Section 7. Upon termination, Publisher will immediately remove Contextual Access Code from all Publisher Pages of the Publisher Website so terminated, or in the case of termination of this Agreement in its entirety, from all Publisher Pages, and shall no longer use Contextual Access Code. Termination will not limit Quigo from pursuing any other remedies available to it under any agreement and/or applicable law, including injunctive relief. The rights and obligations of the parties as provided in this Section 11 and the following provisions of this Agreement will survive any expiration, cancellation or termination of this Agreement: Sections 1, 5, 6, 7 (to the extent of any outstanding payment obligations and provided that there has not been a material breach by Publisher), 9, 10 and 12.
12. Miscellaneous. Any notice by Quigo required or permitted hereunder may be posted by Quigo on its website, sent to Publisher by email or by mail, as Quigo may elect. Any notice by Publisher required or permitted hereunder shall be sent to Quigo by mail, to the address listed at www.quigo.com/contactus.htm. The parties disclaim any liability whatsoever of any hosting vendor that Quigo uses for providing the AdSonar Service, their suppliers or subcontractors, to Publisher, Advertisers and End Users. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof. This Agreement shall not be deemed to create any rights with any other person or entity (including Advertisers, Publishers or End Users). This Agreement may not be modified by either party unless such modification is signed by an authorized representative of each party. Neither party may assign this Agreement, nor any right under or obligation pursuant to this Agreement, without the other party's prior written consent which shall not be unreasonably withheld or delayed, except that Quigo may assign this Agreement and/or its rights and obligations under this Agreement within the context of its merger, acquisition or other transaction of similar nature. 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. In any dispute to enforce its rights under this Agreement, each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in New York, New York. The captions appearing in this Agreement are inserted only as a matter of convenience. No waiver by a party of any breach of any provision of this Agreement will constitute a waiver of any other breach of that or any other provision of this Agreement. In the event that any of the provisions contained in this Agreement are held to be unenforceable, such provisions will be narrowed (or deleted if necessary) to the minimum extent necessary to make them enforceable. Each party will perform its obligations as an independent contractor and will be solely responsible for its own financial obligations. This Agreement will not create a joint venture, partnership, or principal and agent relationship between the parties.
Last updated: August 30, 2005