PUBLISHER SEARCH FEED TERMS& CONDITIONS

These terms and conditions, together with any previously posted amendments, schedules, attachments or exhibits (collectively the “Terms& Conditions”) govern your participation as an “Publisher” and member of the Search Feed Publisher Program (the “Publisher Program”), a non-exclusive, online, performance-based advertising network sponsored by this website (“Network Provider”).

From time to time, Network Provider may amend, supplement or replace entirely these Terms & Conditions by posting updated Terms & Conditions or supplements, amendments or exhibits thereto (collectively the “Updated Conditions”) on the Network Provider web site.

Section 1.  Purpose.

1.1 The Publisher, as a website publisher partner, wishes to use XML Search Feeds from Network Provider and other sources as Search Result Content for Publisher’s pay-per-click Search Queries originating from Publisher’s websites and sub-syndication partners, upon these Terms & Conditions.  One or more XML Search Feeds will be identified with a specific name and/or number visible to Publisher’s Administrators in the Network Provider’s Search Feed Platform.  Publisher will be able to direct Search Queries to each Advertising Feed as instructed by Network Provider.  Publisher wishes to use Network Provider’s Tracking and Reporting System to manage XML Search Feeds.

Section 2.  Definitions.

2.1 A “User” means an individual consumer or business entity who enters or selects a keyword or phrase in a web browser to locate products and services offered by advertisers with a presence on the Internet.  “Search Query” shall mean a search initiated by a User on the Publisher’s website/publisher/downstream partner (“Publisher Website”), and the “Search Result” is one or more text advertisements (each typically including a title, description, and display link to an advertiser’s website) which are grouped together and displayed in response to a User’s Search Query.  “Network Provider Search Result Content” is a collection of one or more Search Results compiled by Network Provider.  “Click Fraud Protection Filter” is a system technique which determines that a User may not be a legitimate user and therefore prevents either a Search Query or a Click-Through from being passed through to an Advertiser Feed Provider.

2.2 “Click Through Revenue” are monies paid by an advertising client who has agreed to pay to be listed in a Search Result compiled by Network Provider.  When a User clicks (“User Click”) on the client’s listing in such Search Result, and the click successfully passes Network Provider’s Click-Fraud Protection Filters, then Network Provider redirects the User to the advertiser-specified website displayed in the listing and this action becomes a “Click Through”.  An “Advertiser Feed”, also known as an “XML Search Feed”, is the Search Results from multiple advertising clients provided in XML format.  An “Advertising Feed Provider” is a company with its own advertising clients which supplies Advertiser Feeds to Network Provider. “Gross Click Through Revenue” are monies collected by Network Provider.  “Net Profit” is defined as Gross Click Through Revenue less payments to sub-affiliates or publishers or downstream partners.

2.3 “Network Provider Intellectual Property” shall mean any Network Provider websites, Network Provider Search Results, Network Provider licensed marks, any Network Provider marketing materials, systems, technology and any other patents, patent rights, services marks, trademarks, trademark rights, trade names, trade name rights, copyrights (whether registered or not), know-how, technology and trade secrets, now owned or hereafter acquired or developed by Network Provider.

2.4 “Start Date” will be the date, after Publisher has accepted these Terms and Conditions and been activated in the Network Provider Search Feed Platform, that Network Provider Search Results will begin to be utilized by Publisher under these  Terms& Conditions.

2.5 “Stress Test” means any program or software that sends Queries or Click Throughs to Network Provider's servers in an automated fashion and/or that were not initiated by an end user on the Publisher’s website.

2.6 “Search Feed Platform” is a software system which runs on one or more Network Provider-managed web servers which determines in real time whether a Search Query shall initiate a Search Result and whether a User Click shall become a Click Through.  “Tracking and Reporting System” is part of the Search Feed Platform which tracks Search Queries, Search Results, Click Throughs and Click Through Revenue of the XML Search Feeds and makes various activity reports available to people authorized by Publisher (“Administrators”).

Section 3.  Search Result and Logo Placement.

3.1 Placement of Search Results.Publisher agrees to display the links to Network Provider’s clients provided in the Network Provider Search Result Content as part of Publisher’s search results. Publisher agrees to maintain titles and descriptions provided by Network Provider within the Search Result Content. Such links shall not be altered or changed, and the description and display URL should remain as sent to Publisher.

3.2  Additional Search Results Providers.Network Provider may have the ability to offer XML Search Feeds from specific Advertising Feed Providers with various requirements for websites utilizing their results. In the event that such an agreement is reached between Network Provider and any such Advertising Feed Provider, and, provided that Publisher will agree to the terms relating to Publisher’s rights and obligations contained in such an agreement, an exhibit, as set forth above, addressing these changed rights and obligations signed or otherwise agreed to (in the sole discretion of Network Provider) by the parties hereto shall be attached to these Terms & Conditions, and shall, where applicable, amend the terms of this Terms & Conditions.

Section 4. Duties of the Parties.

4.1 Network Provider agrees to deliver URLs to the Publisher, which provide User access to Network Provider Search Result Content in response to Search Queries on the Publisher Website(s), throughout the term of these Terms & Conditions, unless Network Provider determines in its sole and absolute discretion that the Publisher has committed a violation of any provision in Section 4.2 below.  Network Provider will provide regular monitoring, management and reporting in its Tracking and Reporting System. This may include shifting of variables to attempt to achieve the highest Click Through Revenue given the quality of Users on Publisher’s Website(s).  Network Provider understands that all Advertiser Feeds placed in its system by Publisher, if any, are the property of Publisher, and Network Provider cannot and will not take any action with these feeds without prior confirmation and agreement by Publisher.  Network Provider agrees to maintain and manage the servers, platform and technology which provide User access to the Network Provider Search Feed Platform, reporting tools for Publisher and its publishers, and the Search Results in response to Queries from Publisher’s Websites (and/or publishers and/or downstream traffic partners),  unless Network Provider determines in its sole and absolute discretion that the Publisher has committed a violation of these Terms & Conditions.  Network Provider will use the Publisher’s login to any third party Advertiser Feeds to gather the valid revenue information to load in the Network Provider platform which will calculate actual profit and payments.

4.2 Prior to the Start Date, Publisher shall have the following processes in operation, which shall continue throughout the term of this Terms & Conditions.  The Publisher shall:

a.                   Inform Network Provider of its approximate average daily searches for the most recent weekly or monthly period for which information is available, and make all best efforts to provide advance notice to Network Provider of any expected increase in average daily searches above 25% of the then current monthly average;

b.                   Test the functionality and appearance of, and assist Network Provider in verifying the functionality and appearance of, the Network Provider Search Result Content, test the links to the Network Provider Search Result Content and ensure that Users gain timely access to the Network Provider Search Result Content.  However, Publisher shall not Stress Test Network Provider’s Search or Click-Through mechanisms without the prior written consent of Network Provider, which may be sent via email;

c.                    Agree not to use any portion of the Network Provider Search Result Content for any purpose other than displaying Search Results on the Publisher Website;

d.                   Agree to take reasonable efforts to stop "bots" or "spiders" from initiating requests for search results or executing Click Throughs on Network Provider Search Result Content via the Publisher Website.  Additionally, if Network Provider informs Publisher of the IP addresses of agents, affiliates, networks of computers, or other third-parties which appear to be using “bots” or “spiders,” Publisher agrees to make reasonable efforts to block such IP addresses from accessing the Publisher Website.  Publisher shall notify Network Provider as soon as practical in the case where a “bot,” “spider,” “network,” or User cannot be stopped from performing repeated Searches or Click Throughs on the Publisher Website, and shall not object if Network Provider blocks such IP addresses on its own.  A “bot” or “spider” shall be defined as a software program that executes Searches or Click Throughs that were not initiated by unique Users on the Publisher Website.

e.                    Agree to not display Network Provider Search Result Content in any pop-up window unless the pop-up window is deployed as a direct response to a User Query, and the Search Result Content consists of listings for the exact keyword or phrase used in the User Query.

f.                    Agree to dynamically provide to Network Provider the unique User IP address and User browser “useragent” in the manner specified by Network Provider in its XML string, on each unique query and click-through.  Network Provider shall limit its use of such information gathered from the Publisher solely for fraud screening purposes.

g.                   Publisher will not save (nor store in a cache) any Search Result provided by Network Provider and agrees to initiate a new search through Network Provider for each User Query posed on the Publisher Websites.

h.                   Publisher shall not intentionally post misleading information with regard to Network Provider’s Search Results. Publisher shall not act, either directly or indirectly, to encourage or require Users, either willingly or unwillingly, to click on Network Provider’s Search Result listings and/or to generate Click Throughs through any means, which could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent. 

i.                     Publisher will pass to Network Provider in the XML string a unique “Sub id” identifier as part of the Query and Click Through data.  The Sub id shall uniquely identify the website or downstream partner on which the user originated.

j.                     User Name and Password. Upon submission of Publisher’s application, Publisher will be issued a user name and a password. Publisher’s use of these identifiers is limited only to Publisher, and may not, under any circumstances, be distributed to any other person.

4.3 Service Level Agreement: 

a.          Scope:  Network Provider takes responsibility for its systems between the following interface points:

1.  Acceptance of Search Query (e.g. from Publisher or its vendors) until the return of Search Results (e.g. from Advertiser Feeds), only for Queries which are not filtered (e.g. blocked) by the Click Fraud Protection Filter.

2.  Acceptance of a User Click until forwarding of the Click to an advertiser server, only for clicks which are not filtered (blocked) by the Click Fraud Protection Filter.

3.  Administrator access to Network Provider reporting and administrative management systems.

Publisher understands that the display of Search Results at a publisher website is dependent on many factors including those outside of Network Provider's control, for example network availability, accessibility of advertiser feed systems, correct code on publisher website, etc.

b.          Support and Actions:  Network Provider's support personnel will verify, diagnose and correct any unexpected failure caused by Network Provider's systems.  They will provide, at Network Provider's sole discretion, reasonable efforts to assist Publisher and its vendors in diagnosing problems external to the Network Provider systems for which Network Provider is not responsible.  Publisher and its vendors shall also assist Network Provider in diagnosing failures in the Network Provider systems, for example, by providing logs or sending test data.

c.          Availability:  Network Provider systems are normally available 24/7 and will provide a 99.6% guaranteed uptime per month, excluding:

1.  Scheduled maintenance windows;

2.  Planned service outages including emergency maintenance;

3.  Force Majeure; and

4.  Customer or Publisher-enabled faults.

d.          Notification:  Publisher must notify Network Provider if it experiences failure of service at any of the above system points of contact.

Section 5.  Payment.

5.1 Network Provider search results are provided through XML Search Feeds that are sent to Publisher’s Website. Network Provider agrees to pay Publisher a share of the Click Through Revenue received by Network Provider from their Advertising Feed Provider on a per click basis, for User Click-Throughs from search queries and text links, that result in a click on a paid listing on the Network Provider Search Result Content displayed on the Publisher Websites.  For the purposes of these Terms & Conditions, revenues are earned when the Click Through occurs.  It is agreed and understood that payment to Publisher from Network Provider is subject to payment receipt from the Advertising Feed Provider.  Network Provider shall pay Publisher in U.S. dollars.

5.2 Payment to Publisher is equal to the total dollar amount reported daily in the real-time Tracking and Reporting System, in the column “Valid Partner Revenue”, subject to later adjustments due to Advertiser Feed Provider-reported discrepancies and holdbacks.  In no case will payment to Publisher be greater than the Gross Click Through Revenue actually collected by Network Provider and allocated to Publisher’s website Click-Throughs.  Payments are made 45 (forty-five) days after the end of each calendar month.

5.3 Network Provider shall not be obligated to make any payment to Publisher unless the aggregate amount of payment due equals or exceeds five dollars ($5.00).  Any earned but unpaid payments shall carry over to the next regularly scheduled payment period.

5.4 Publisher must provide to Network Provider by fax or mail a properly filled-out and signed United States IRS Federal tax form W-9 or W-8 (for Publishers located outside the United States).  Network Provider will not make any payment to Publisher prior to receipt of this form from Publisher.  Network Provider may, at its sole discretion, suspend Publisher’s account and/or deny payment if submitted information is fraudulent or invalid.

5.5 Publisher will have access to check real-time statistics 24 hours a day, 7 days a week. Publisher acknowledges and agrees that the count of number of clicks of any campaign, even if third party hosted by the Publisher, will be reported by Network Provider statistics. Network Provider statistics are estimates and not final and are subject to final review and reconciliation from the Advertising Feed Provider. As a result, Network Provider offers no representation or warranty as to the accuracy of this information. This information is to be used as a guide only.  Network Provider reserves the right to a same-day or a 24-hour out clause with the Publisher if Publisher-sourced Queries or Click-Throughs are found to be fraudulent or otherwise damaging to Network Provider and its relationship with the Advertising Feed Provider.

5.6 The Publisher agrees that Network Provider may, at its sole discretion, ignore or credit back Click Through Revenue, which it believes is fraudulent or invalid in nature. The Publisher also agrees that Network Provider will only pay the Publisher for Click Throughs for which it was able to collect revenues from its Advertising Feed Provider clients (i.e., in the event of system failure or trouble with Network Provider, Network Provider will not be liable to pay Publisher for clicks delivered to Network Provider’s clients, but not recorded or charged to client accounts due to system failure).

5.7 Network Provider retains the right to charge Publisher excessive bandwidth fees for excessive use or abuse of Search Queries resulting in few or no clicks.  In this situation, Network Provider will contact Publisher and will come to a mutual agreement on a case-by-case basis.  Excessive use or abuse is determined on a publisher-by-publisher basis over any given period and is defined as when the Click Through Revenue is less than the cost of the sum of data traffic of Search Queries and Search Results (where data traffic has a cost of $3 per gigabyte).  Bandwidth charges are applied against the Click Through Revenue before revenue share calculation.

Section 6.  Ownership and Licenses.

6.1 Nothing in these Terms & Conditions will vest in the Publisher any right, title or interest in the Network Provider Intellectual Property or any copyright, trademark and other intellectual property rights therein.

6.2 Subject to these Terms & Conditions and only during the Term of these Terms & Conditions, Network Provider hereby grants to the Publisher a limited, revocable, non-exclusive, worldwide license only to use the Network Provider Search Result Content, Search Feed Platform and Tracking and Reporting System for the purpose of utilizing Network Provider as a search engine and displaying Search Results on the Publisher Websites and to perform the duties set forth in Sections 3 and 4 above.

Section 7.  Confidentiality. 

7.1 Publisher agrees that the terms of its relationship with Network Provider are strictly confidential, and that Publisher shall not disclose such terms to any third party without the prior written consent of Network Provider.  The Publisher shall not make any public statement, issue any press release or make or release any other type of announcement or statement relating to the existence of its relationship with Network Provider without the prior written approval of Network Provider.

7.2 Furthermore, during the course of performance of this Terms& Conditions, either party may disclose to the other, by any means of communication, including, without limitation, information transmitted by voice, e-mail, fax and instant-messaging, certain creative, business, technology, research, customer, pricing and/or other information related to the subject matter of the Terms & Conditions, including, without limitation, client data, business processes, technical procedures and configurations, pricing, terms, and click-fraud processes, all of which shall be deemed confidential and proprietary to the disclosing party unless otherwise designated in writing by disclosing party ("Confidential Information").  The receiving party shall maintain disclosing party’s Confidential Information in confidence, shall protect it with the same degree of protection which it uses to protect its own Confidential Information, shall not disclose it to any third party in perpetuity, and shall use it for the sole purpose of performing under these Terms& Conditions.  At the conclusion of the Term , the receiving party shall either return disclosing party's Confidential Information in its possession (including all copies) or shall, at disclosing party's direction, destroy disclosing party's Confidential Information (including all copies) and certify its destruction to disclosing party.

Section 8.  Term and Termination.

8.1 Term.  These Terms & Conditions will become effective between Network Provider and Publisher upon the Start Date and continue for one year (“Term”), unless terminated earlier pursuant to the terms hereof.  This Terms & Conditions shall be automatically renewed for each subsequent 12-month period thereafter (“Renewal Term”) unless either party gives the other written notice of cancellation to the other party at least thirty (30) days prior to the expiration of any Term or Renewal Term as hereinafter defined.

8.2 Termination.  Notwithstanding Section 8.1, these Terms & Conditions may be sooner terminated as follows:

a.                   Either party may terminate these Terms & Conditions effective immediately if the other party is in default of any material obligation under these Terms & Conditions, and such default shall have continued unremedied for a period of fifteen (15) days following written notice of such default given by the non-defaulting party to the defaulting party.

b.             Network Provider may terminate these Terms & Conditions effective immediately if, in its sole and absolute discretion, Network Provider determines that the Publisher is in violation of Section 4 of this Terms& Conditions.

8.3 Survival.  The following provisions shall survive the termination of this Terms & Conditions: 4.2 (c-e), 4.2 (g-h), 5, 6.1, 7, 8.3, 9-12.

Section 9.  Warranty Disclaimer.  ALL PARTIES HERETO EXPRESSLY DISCLAIM ANY REPRE­SENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Furthermore, neither party makes any representation or warranty to the other party that the performance of its obligations under these Terms & Conditions will produce any level of profits or business for the other party.

Section 10.  Mutual Indemnification.  Each of the parties hereto hereby mutually agrees to and does hereby indemnify, save, and hold the other, including, without limitation, its officers, directors, employees, successors and assigns harmless from any and all damages, liabilities, costs, losses and expenses (including legal costs and reasonable attorneys' fees) arising out of, or connected with any claim, demand, or action reduced to a final adverse, non-appealable judgment or settlement with indemnifying party’s consent (which shall not be unreasonably withheld) by a third party which claim, demand, or action is inconsistent with any of the warranties, representations, or covenants that the indemnifying party has made in these Terms & Conditions.  Each party agrees to reimburse the other, following entry of a final, non-appealable adverse judgment or settlement with consent, for any payment made by a party hereto at any time with respect to any such damage, liability, cost, loss or expense to which the foregoing indemnity applies.  Each party shall notify the other of any such claim, demand, or action promptly after they have been formally advised thereof, and the other shall be entitled to participate in the defense of same, provided that said participation shall be at their sole cost and expense.

Section 11.  Limitation of Liability. AFFILIATE AND NETWORK PROVIDER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST PROFITS), INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING, DIRECTLY OR INDIRECTLY, OUT OF ITS PERFORMANCE OF THIS AGREEMENT.  NETWORK PROVIDER WILL PROVIDE ITS BEST EFFORTS TO MAINTAIN THE NETWORK PROVIDER SYSTEMS BUT WILL NOT BE RESPONSIBLE FOR ANY OUTAGE, LOSS OF SYSTEM FUNCTION OR LOSS OF REVENUE.

Section 12.  Miscellaneous.

12.1 Notices.  Any notice required or permitted by these Terms & Conditions shall be deemed given if delivered by certified mail, postage prepaid, or by overnight courier, next day delivery, addressed to the other party at the address provided upon signup or at such other address for which such party gives notice hereunder.  Delivery shall be deemed effective three (3) days after deposit with the U.S. Post Office, or one (1) day after deposit with the overnight courier service.  Notwithstanding the foregoing, Network Provider may give notice to Publisher by e-mail at the address provided upon signup or subsequently updated within Publisher’s profile.

12.2 Severability. If any clause or provision in these Terms & Conditions is determined to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it will not affect the validity of any other clause or provision these Terms & Conditions, which will remain in full force and effect.

12.3 Force Majeure.   Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to:  earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.

12.4 Waiver. The failure by any party to exercise or enforce any of these Terms & Conditions shall not constitute a waiver of that party's rights hereunder to enforce each and every term and condition of these Terms & Conditions.

12.5 Assignment.  Neither these Terms & Conditions nor any rights or obligations hereunder may be assigned by Publisher without first receiving prior written consent of Network Provider, which consent may be withheld in the sole discretion of Network Provider.

12.6 Governing Law. These Terms & Conditions shall be governed by and constructed in accordance with the laws of Kansas applicable to agreements made and to be performed in Kansas.  The Kansas Courts (state and federal) only will have jurisdiction of any controversies regarding these Terms & Conditions.

12.7 Authority of Parties and Signatories. Publisher represents and warrants that by accepting these Terms & Conditions with Network Provider, it is not breaching any duty or obligation to any third party and that the person accepting these Terms & Conditions on behalf of it is the duly authorized representative of such party and authorized to bind it to the terms of these Terms & Conditions.

12.9 Entire Agreement.  This Terms & Conditions sets forth the entire understanding of the parties hereto relating to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral.  No modification, amendment, waiver, termination or discharge of this Terms & Conditions or any of the terms or provisions hereof shall be binding upon either party hereto unless confirmed by a written instrument signed by both parties.  No waiver by either party hereto of any term or provision of this Terms& Conditions or of any default hereunder shall affect either party's respective rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default, whether or not similar.

12.10 Attorney Fees.  In the event of any action, suit, or proceeding arising from or based upon this agreement brought by either party hereto against the other, the prevailing party shall be entitled to recover from the other its reasonable attorneys' fees in connection therewith in addition to the costs of such action, suit, or proceeding.

12.11 Modification.  Please note that Network Provider may modify these Terms and Conditions at any time, in its sole discretion, and without notice, by posting such changes on the Network Provider website.  Accordingly, please check the website frequently for changes.

These Terms & Conditions dated:  September 1, 2014.