Agency/Advertiser Terms and Conditions - Version 01/05

ValueClick CPA Campaigns

1. ValueClick Services.
This agreement, in conjunction with the corresponding Insertion Order, shall constitute Advertiser's, its clients' and agents' (herein collectively referred to as "Advertiser") understanding that ValueClick, Inc.'s ("ValueClick") sole obligation is to promote the Advertiser's product or services by showing banners, taglines, text links or email creative ("Creative") provided by the Advertiser on site(s) across the ValueClick Network or in email transmissions (the "Agreement"). The submission of a signed Insertion Order by Advertiser to ValueClick is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to this Insertion Order are invalid unless acknowledged and accepted in writing by both ValueClick and the Advertiser. Advertiser agrees that ValueClick may, but is not obligated to, display Creative across the entire ValueClick advertising network or on specific site(s) and that daily Campaign activity begins at 12:01 AM Pacific Standard Time. ValueClick may, at its option, modify the flight date of a Campaign(s) if the creative or linking URL’s: are not delivered on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues. All rates quoted herein, orally, or through written communications are only valid fourteen (14) days from date of such statement. If no agreement is reached within this time frame ValueClick reserves the right to change rates.

2. Delivery Measurement Standards.
Advertiser will submit acquisition counts to ValueClick using one of two methods including placement of a tracking pixel on the Advertiser's confirmation page (see paragraph 3), or through the use of Ad Code (see paragraph 4). Billing will be based solely on ValueClick measurements. ValueClick reserves the right to cancel any agreement if ValueClick determines any technical incompatibilities or unapproved changes are made to landing page or pixel page contents following the acceptance and signed approval of this Insertion Order.

3. Pixel Placement and Campaign Reporting.
3.1 Advertiser agrees to place a tracking pixel, provided by ValueClick, on their “Confirmation Page”. This tracking pixel is activated each time the Advertiser's Sign-Up page is completed and the Confirmation / Thank You page is displayed. Advertiser agrees not to remove the tracking pixel from this location until the termination of the campaign as agreed upon in the attached insertion order and these terms and conditions. If the Advertiser removes the pixel at any time during the campaign without express written permission from ValueClick, Advertiser agrees to pay ValueClick for the days during which pixel was absent based on the average daily conversion measurements, using daily click counts and conversions prior to pixel being removed.
3.2 The Advertiser agrees to pay for each submission that results in the display of their Confirmation / Thank You page. Advertiser also agrees to supply ValueClick, via their ValueClick Account Representative, daily lead totals for the first two weeks of their campaign and at least weekly thereafter. This daily information shall serve as confirmation that the tracking pixel system is enabled, as well as ensuring accuracy between ValueClick and the Advertiser's daily counts. If Advertiser fails to supply these reports ValueClick reserves the right to pause or cancel this Insertion Order. It is the Advertiser’s responsibility to filter data such that unacceptable or incorrect submissions are limited or screened completely. Advertiser shall acknowledge all filters in place that may limit submission of data. In addition, Advertiser understands any filtering that may occur must be implemented in real time and prior to display of the Confirmation / Thank You page. No credit shall be given for any unacceptable, or incorrect data after it has been accepted by the Advertiser and reported to ValueClick for any reason, including, but not limited to: incorrect data, invalid data or unacceptable conversion rates.

4. Ad Code Tracking/Unique URL
Agency agrees that in the event Ad Code or Unique URL’s are used to track the performance of a CPA campaign, Advertiser will provide ValueClick, with billable daily lead totals, by Publisher, for the life of their campaign as specified in the attached insertion order. Advertiser agrees to provide login information or to send daily data to cpastats@ValueClick.com. If Advertiser fails to supply these reports ValueClick reserves the right to pause or cancel this Insertion Order. It is the Advertiser’s responsibility to filter data such that unacceptable or incorrect submissions are limited or screened completely. Advertiser shall acknowledge all filters in place that may limit submission of data. In addition, Advertiser understands any filtering that may occur must be implemented in real time and prior to submitting data to ValueClick. No credit shall be given for any unacceptable, or incorrect data after it has been accepted by the Advertiser and reported to ValueClick for any reason, including, but not limited to: incorrect data, invalid data or unacceptable conversion rates.

5. Payment, Credit and Cancellation Terms.
5.1 All invoices created by ValueClick for work performed and delivered to the Advertiser shall be based on ValueClick’s measurements and shall be in accordance with measurement and tracking described in Section 2. In addition, all payments will be based upon ValueClick’s measurements and not based upon Advertiser, its clients, its agents or any third party's measurements.
5.2 All payments will be made in advance unless agreed upon otherwise or credit is approved and ValueClick is under no obligation to perform agreed upon services until payment is received. Upon approved credit, terms are Net 30 from date of invoice.
5.3 It is the Advertisers responsibility to validate all impressions, clicks, leads and/or acquisitions. The Advertiser must report any discrepancies related to their campaign to ValueClick within fifteen (15) days of the occurrence. ValueClick is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to ValueClick based upon any discrepancy not reported within this time frame. All discrepancies must be reported to ValueClick at billing@ValueClick.com. Advertiser agrees, that in the event of over delivery, to pay for any units delivered over the specific contract Units Ordered up to 10% of the specific contract Units Ordered.
5.4 Either party may cancel this Agreement upon providing two (2) weeks written notice via email, fax or US Mail. If Advertiser terminates campaign early - payment in full for work performed and delivered up to the modified cancellation date will be owed and due and payable in full.
5.5 If Advertiser fails to pay overdue invoices for previous campaigns, ValueClick reserves the right to immediately terminate any active campaigns.
5.6 In the event Advertiser pays with credit card, Advertiser expressly agrees not to charge back on credit card account. Advertiser agrees to follow dispute resolution agreement as specified in section 13 and 5 herein.
5.7 All payments must be made in U.S. funds. Advertiser understands and agrees that in no event, and under no circumstance will data provided by any ValueClick representative constitute final billing numbers. Only Invoices mailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
5.8 Advertiser agrees that all cancellation notices must be submitted via e-mail and must include a CC: to terminationrequest@valueclick,com. All requests must be copied to this e-mail address to be considered valid. Furthermore, cancellation requests not copied to this address will not be considered valid and the Advertiser will be liable for all payments due.
5.9 In the event that ValueClick has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that ValueClick may use and consider Advertiser’s third-party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to ValueClick.
5.10 ValueClick agrees to stop the Advertisers campaign temporarily (“Pause”) with a written request from the Advertiser. ValueClick will accept one (1) Pause request per campaign Insertion Order's flight dates and will extend the Pause for a maximum of seven (7) days. If Advertiser does not make further contact with ValueClick, following a Pause request, ValueClick will automatically restart the Paused campaign and continue to deliver agreed upon leads, impressions, or clicks. If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures set forth within these Terms and Conditions. Any cancellation notice will be based on the date the written notice was received by ValueClick. ValueClick will not accept the Pause period as a part of cancellation. If Advertiser cancels campaign during Pause period Advertiser agrees to pay for any leads, impressions, or clicks, delivered during the remaining cancellation notice period, based on daily averages prior to Pause.

6. Can Spam Act.
6.1 For purposes of this Agreement, “Spamming” shall mean the act of sending unsolicited commercial emails and/or sending commercial emails not in compliance with the Federal Can-Spam Act Public Law 108-187 (the “Can-Spam Act”) or any other law applicable to commercial email.
6.2 All Publishers doing business on the ValueClick network have warranted to ValueClick that they are in compliance with the Federal Can-Spam Act Public Law 108-187 (the “Can-Spam Act”) and that they do not engage in Spamming activities including but not limited to; no misleading "From Lines", "Subject Lines", including both Publisher's and Advertiser's physical address and "Opt-Out" mechanism, no suppress Advertiser "Opt-Out" lists against their own, and not to resell, remarket, or otherwise use Advertiser "Opt-Out" lists. Under the Can-Spam Act, email recipients must be given the opportunity to "Opt-Out" of any email received from ValueClick or its Publishers, and not to receive any further advertisements from Advertiser contained within the email. Therefore it is the Advertiser's responsibility to ensure that it is in full compliance with the Can-Spam Act, including but not limited to, providing ValueClick with a complete list of all "Opt-Out" email names, and creative which includes the Advertiser's physical address and a functional "Opt-Out" email mechanism. Under the Can-Spam Act it is the Advertisers responsibility to ensure that "Opt-Out" mechanism is functional for thirty (30) days from date of e-mail drop, that "Opt-Out" requests are processed within ten (10) days, and that the e-mail name of any "Opt-Out" request is not sold or re-marketed following such a request.
6.3 Any Advertiser suspecting a ValueClick Publisher of Spamming should report their concerns immediately to ValueClick. Advertiser agrees to give ValueClick a minimum of 48 hours to address the complaint and respond to the Advertiser with feedback. The Advertiser must report any complaints of Spam related to their campaign to ValueClick within thirty (30) days of the occurrence.
6.4 ValueClick will make commercially reasonable efforts to obtain opt-in information, including opt-in source, date, IP address, from any Publishers within our network that the Advertiser suspect are Spamming. Publishers refusing to supply such information will be terminated.
6.5 ValueClick represents and Warrants that it will not remarket, resell, or otherwise distribute any Advertiser "Opt-Out" list to any other party for any purpose other than to permit suppression against existing email lists.

7. Creative Standards.
7.1 All advertisements are subject to ValueClick’s approval. Under the Can-Spam Act, all advertisements must include the Advertiser's valid physical address, a fully functional "Opt-Out" mechanism, a non-misleading and accurate "Subject Line", and an accurate and non-misleading "From Line". ValueClick reserves the right to reject, discontinue, or omit any Creative or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Creative. ValueClick may reject any Creative that ValueClick feels is not in keeping with reasonable standards outlined herein. ValueClick is not liable for errors in Creative position and/or placement, or typographic errors of any kind.
7.2 If Advertiser intends to provide ValueClick with Creative via 3rd party tags, Advertiser agrees to provide ValueClick with a sample of each and all advertisements contained within the 3rd party tags. Failure to do so will be deemed a breach of this Agreement. In the event ValueClick’s relationship with its publishers is damaged or lost as a result of a breach of this condition, ValueClick reserves the right to recover any and all monetary damages.
7.3 Advertiser agrees to allow ValueClick to make minor changes or alterations to text link copy solely for the purpose and intent of matching it to the medium of delivery (e.g. original text copy “Register for a…”, altered copy, “Interested in Registering for a…."). Anything beyond this (modifying or changing the meaning or intent of any text link copy), ValueClick will only do so with the express written permission of the Advertiser.
7.4 Advertiser agrees and understands that if ValueClick is requested to retrieve creative for and on behalf of Advertiser, that ValueClick peforms this service solely as a courtesy to Advertiser, and as such ValueClick will not be liable for any errors, including but not limited to retrieving incorrect creative. Furthermore, Advertiser agrees to pay for all campaigns delivered for and on behalf of Advertiser, as defined in the insertion order, where ValueClick was requested to obtain creative from a location provided by the Advertiser.

8. Limitation of Liabilities.
VALUECLICK SHALL NOT HAVE ANY LIABILITY TO THE ADVERTISER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT VALUECLICK’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE CHARGE FOR THE ADVERTISEMENT IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, VALUECLICK MAKES NO OTHER WARRANTIES TO ADVERTISER AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. Indemnification.
9.1 All Creative has been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. Advertiser agrees to indemnify and hold ValueClick, its Publishers or Lists Providers and its respective affiliates, employees, officers, agents, directors and representatives (“ValueClick Indemnified Parties” or “VCIP”), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney's fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or the unauthorized use of any person's name or photograph, arising from ValueClick reproduction and publishing of such Creative pursuant to Advertiser's submission.
9.2 Advertiser understands that ValueClick in due diligence cannot monitor all ValueClick Host sites for appropriate content and ValueClick may not be held responsible for the content of any Host site. If Advertiser reasonably determines that the placement of any advertisement by ValueClick hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then ValueClick shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser's notice thereof to ValueClick; provided, however, that if ValueClick reasonably believes that removal of an advertisement from a site will have a material impact on ValueClick’s ability to deliver advertisements in accordance with the Insertion Order, ValueClick may condition such compliance on Advertiser providing an extension of the flight dates.
9.3 Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless the ValueClick Indemnified Parties from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) Losses which result from any claim of damages brought or sought against VCIP ValueClick that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on VCIP ValueClick giving prompt written notice of any such claim. VCIP ValueClick will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
9.4 Advertiser represents and warrants that it is in full compliance with the Can-Spam Act and any other laws applicable to commercial email. Advertiser agrees to indemnify, defend, and save VCIP ValueClick harmless from any and all Losses and liability for any third party claims or suits brought against Advertiser or ValueClick VCIP, related to Advertiser's obligations under the Can-Spam Act or other laws applicable to commercial email.
9.5 Advertiser agrees not to resell, market, or transfer any data regarding consumers gained through this campaign to any third party unless expressly permitted by ValueClick in writing.

10. Force Majeure.
ValueClick is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond ValueClick’s control affecting production or delivery in any manner.

11. Confidentiality.
Parties have disclosed or may disclose to each other information relating to each party’s business (including, without limitation, data and other information pertaining to publisher sites, affiliates and vendors that are or have been part of the ValueClick Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information.” Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its Representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. (“Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Advertiser’s advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.

12. Proprietary Relationships.
ValueClick has proprietary relationships with the publishers that make up the Network. With the exception of reasonably documented, preexisting relationships with direct publishers or networks or relationships entered into in the ordinary course of Advertisers business, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that the Advertiser knows, or has reason to know, is a publisher on the Network for the purpose of offering to such publisher products or services that compete with those of ValueClick, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of ValueClick. Advertiser understands that in the event of a breach of the forgoing representations by Advertiser, ValueClick shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and ValueClick shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party’s decision to enter into this Agreement.

13. Choice of Law and Venue.
It is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by California law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of the State of California as such courts shall serve as the exclusive venue for all dispute resolution. The prevailing party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys fees, together with its costs and expenses incurred resolving the dispute as part of the judgment.

14. Entire Agreement.
14.1 This Agreement, together with the Insertion Orders incorporated by reference, embodies our entire agreement, supersedes all prior oral and written agreements, and may not be amended or modified except by an agreement signed by both parties. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event that any of the provisions included herein are held to be unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any notice or report required or permitted by this Agreement shall be made by personal delivery or fax to the operating fax number or business address.
14.2 Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

15. Press Releases.
15.1 Advertiser is willing to collaborate with press releases and/or be mentioned as a new client. If Advertiser is unwilling to participate in PR activity, please initial here ________

16. Survivability.
16.1 Paragraphs 6, 8, 9, 11 and 13 shall survive in perpetuity after the termination of this agreement by either party; Paragraph 12 shall survive for six (6) months from such termination.