Publisher Terms and Agreement
Updated by ClickInstalls, December 15, 2009
Before taking possession, signing up, downloading, reviewing or in any otherwise form of using the ClickInstalls.com Programs - Software (as defined below), you (the 'Publisher') must have agreed to all of the terms of this distribution agreement. Upon agreeing to the Terms and Conditions set forth in this Agreement by your acceptance by completing the online Publisher Sign-up registration form, ClickInstalls, hereafter called (the 'Company') grants you a limited, non-exclusive, royalty free license during the term of this Agreement to promote, display and distribute the Company's executable code(s) and creative(s), found in the Promotional Tools Area (hereinafter referred to as individually or as a combination of as the 'Tools') on the Publishers website(s) only, and only in accordance with this Agreement (further detailed in Section 2).
NOTICE: In accordance with the terms of the Publisher Distribution Agreement ("Agreement"), effective immediately, all previous versions of the Agreement are terminated, and are replaced by this version dated December 15, 2010. The Company reserves the right to change the terms of this Agreement at any time without notice to Publisher and, Publisher agrees to be bound by such revised terms.
This is a legal agreement between you and the Company. By signing up in our program you agree to be bound by the the Terms and Conditions set forth herein. Your participation will not be recognized unless you have accepted each and every term hereof.
"Bundled Product" means any bundled software made available to Publisher to offer to their End User that contains the Software and a Product, including but not limited to, a specific website, web page, content, other software or functionality or programming that contains the software and any product.
"End User" means any person or entity licensed by the Company to use the Software pursuant to an End User License.
"End User License Agreement" shall mean an agreement between Company or one of its Publisher and a User under which the User is required to agree to certain terms and conditions as a prerequisite to using a Product.
"Product(s)" means (a) either the Company Promotionally Listed Offers, as determined by the Company in its sole discretion, and (b) any other product(s) or service(s) that Company authorizes the Publisher to distribute pursuant to this Agreement.
"Proprietary Right" means any patent, copyright, trademark, trade secret or other intellectual or proprietary right, under the laws of the United States or any other country in question.
"Referred Publisher" is an individual or group that signs up for Company’s program after being referred by a Publisher through its referral link, with the Publisher account ID being recorded upon sign up.
"Term" means the period of time specified in Section 2, 4, 6, 8, 25 and "Additional Terms" of this Agreement.
"Tools" means any content made available by Company to Publisher from time to time for display or use on Publisher Site(s), including, without limitation, code, interface materials, paper or electronic documentation, trademarks, service marks, and trade names.
"User" means a new unique end-user who, during the Term, installs the Company Promotional Tools (either alone or in connection with installations of any other Company approved third party Product(s)) on such user’s computer through the install process of the Publisher, who has not previously installed the same offer(either alone or in connection with installation of any other Product), and whose installation is reported by Company’s tracking system as a valid and unique installation. Company uses proprietary technology to confirm the uniqueness of the install, and whether or not it previously had been installed.
"Publisher" is an individual or entity that signs up by completing the on-line registration form.
"Publisher Site(s)" means the website(s) owned or controlled by Publisher as provided by Publisher in the on-line registration form.
2. License and Distribution
As mentioned briefly above and subject to the terms and conditions within this Agreement, the Company hereby grants Publisher a non-exclusive, non-transferable license to a) use the Software internally for the purpose of integrating the Software into and distributing Bundled Products and b) to distribute the Software as part of Bundled Products, in each case, and in accordance with the terms and conditions of this Agreement. In addition, where Publisher requests specific content, trademarks, logo or creative to promote their Bundled Products the Company will on case by case grant a non-exclusive, non-transferable, license to distribute such. Publisher shall provide the services as described in the Additional Terms (see below). Company will provide Publisher with code or web pages for use on Publisher Site(s) to enable Users to access, download and install Products from Company. This standard code and web pages can be found in the 'Promotional Tools' section of the Company Publisher Portal / web site. Publisher shall not modify the Tools, which are licensed to Publisher as set forth in the Additional Terms. Publisher may not reference Company, its directors or its parent or subsidiary companies without first receiving written consent from Company. Publisher may not issue any press release or other public statements regarding this Agreement without Company's prior written consent.
3. Publisher Obligations and End User License Agreement(s)
a) Bundling and Notices. Publisher shall only distribute the Software as part of a Bundled Product that includes a copy of the End User License Agreement, and Publisher shall cause all Company and partners' copyright and restrictive rights notices appearing in the Software to be retained in the Software, as integrated into all Bundled Products.
b) End User Must Accept End User License Agreement. Publisher shall include in each Bundled Product such security and other devices and measures as may be necessary to ensure, that (i) the Software is downloaded each time the Bundled Product is downloaded and that (ii) in order to complete each download of the Software (each a "Download"), each End User is required to affirmatively accept (e.g., by clicking a button labeled "I Accept", "Yes" or some other affirmative act), and in fact accepts, the terms and conditions of the End User License Agreement.
Publisher shall not, directly or indirectly, promote, advertise market, sell, bundle, or distribute in any form any software or product that competes with the Company Promotion, Offer, or any Product during the Term and for a period of 90 days after this Agreement is terminated.
5. Publisher Code of Conduct
Publisher agrees to be bound by the Company Code of Conduct set forth on Company’s website (the “Code of Conduct”), which is incorporated in its entirety in this Agreement by this reference (see below). Publisher further acknowledges that such Code of Conduct may be revised and updated from time to time and that by continuing to participate hereunder after such changes are posted and made available to the general public.
Publisher explicitly agrees to be bound by such changes. Company believes that promoting an atmosphere of decency and trust amongst itself as well as its Publisher Network assists in the overall performance of Bundles and cleanliness of web site channel. * Publisher agrees to use the English language for all text and documentation associated with the Products. If required and Company does not provide a translation for the Publisher, then English will remain the default language.
6. Compensation and Payment Terms
Company will pay Publisher according to terms set forth in the Additional Terms. Company will be entitled to withhold or deduct payment if a major breach occurs by Publisher. Publisher is responsible for keeping its payment information up to date. Payments will be sent to locations noted in the Account Info area of the Partner Area login on the Company site. Payments will be made by eletronic payment services such Paypal, and wire depending on the amount and frequency. Further details in Additional Terms section.
Company owns and retains all rights, including Proprietary Rights, in and to the Tools and Products. All rights not expressly licensed hereunder are expressly reserved by Company. Publisher shall use the Tools and Products only as provided herein, and shall not alter the Tools or Products in any way, nor shall it act or permit action that would in any way impair the rights of the Company in the Tools or Products. Publisher acknowledges that its use of the Tools and Products shall not create any right, title or interest in or to such Tools and Products and all goodwill or reputation generated by Publisher’s use shall inure to the benefit of Company. Publisher shall not adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the Company trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction. Publisher shall notify Company promptly in writing of any known infringement of the Company Proprietary Rights or other rights in the Tools or Products. As between Company and Publisher, Company is and shall be the sole and exclusive owner of User Information collected through the Products.
8. Terms and Termination
The term of this Agreement shall commence on the date Company receives Publisher's on–line registration and shall continue in force thereafter, unless earlier terminated as provided herein. If Publisher breaches this Agreement, or if Publisher engages in any action that, in Company's sole discretion, reflects poorly on Company or its trademarks, service marks, trade name or reputation, Company may terminate the Agreement immediately upon notice to Publisher. Either party may terminate this Agreement on thirty (30) days written notice to the other party for any reason. Upon the termination of this Agreement for any reason, all license rights granted herein shall terminate immediately, and Publisher shall immediately cease use of the Tools and Products.
During the Term of this Agreement Publisher agrees not disclose or use the "Confidential Information" (defined below) of Company or will only use it as contemplated by this Agreement. Confidential Information is information that has or could have commercial value or other information that Publisher ought in good faith from the circumstances of its disclosure consider to be confidential, including all Proprietary Rights of Company and all other business, technical and financial information that is obtained from Company pursuant to this Agreement. Confidential information shall not include any information that Publisher can verify with substantial proof that: (i) is generally available to or known to the public through no wrongful act of Publisher; (ii) was independently developed by Publisher without use of Confidential Information; or (iii) was disclosed to Publisher by a third party under no obligation of confidentiality to Company.
10. Warranties and Disclaimers
THIS SITE, ANY OF THE SERVICES, AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. LICENSOR DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS, AND NON-INFRINGEMENT. LICENSOR DOES NOT REPRESENT OR
WARRANT THAT THE SERVICES OR MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, TIMELY,
SECURE, CURRENT, OR ERROR-FREE, OR THAT THE QUALITY OF ANY SERVICES OR MATERIALS
OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS. LICENSOR DOES NOT REPRESENT OR WARRANT
THAT THIS SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Licensor reserves the right to change any and all content contained on this Site
at any time without notice. Any reference to any services, products, or other
information, by trade name, trademark, manufacturer, supplier, or otherwise does
not constitute or imply endorsement, sponsorship or recommendation thereof by Licensor.
13. Limitation of Liability
During the Term of this Agreement and thereafter, Publisher agrees that it will not disclose or use the "Confidential Information" (defined below) of Company or will only use it as contemplated by this Agreement. Confidential Information is information that has or could have commercial value or other utility in the business or prospective business of Company, or information that Publisher ought in good faith from the circumstances of its disclosure consider to be confidential, including all Proprietary Rights of Company and all other business, technical and financial information that is obtained from Company pursuant to this Agreement. Confidential information shall not include any information that Publisher can verify with substantial proof that: (i) is generally available to or known to the public through no wrongful act of Publisher; (ii) was independently developed by Publisher without use of Confidential Information; or (iii) was disclosed to Publisher by a third party under no obligation of confidentiality to Company.
14. Dispute Resolution
In the event of a dispute relating to this Agreement that cannot reasonably be resolved between the parties, the parties agree to submit their dispute to binding arbitration before the American Arbitration Association (“AAA”). Such arbitration shall be held in local jurisdiction to be determined and shall be conducted under the then–prevailing rules of the AAA. The existence, content and result of such arbitration shall be held in confidence.
This Section applies to users of the Site where the user may register for an account.
You are responsible for maintaining the confidentiality of the password and
account, and are fully responsible for all activities that occur under your password
or account. You agree to (a) immediately notify Licensor of any unauthorized use
of your password or account or any other breach of security, and (b) ensure that
you exit from your account at the end of each session by signing out / logging out.
Licensor cannot and will not be liable for any loss or damage arising from your
failure to comply with this section or relating to passwords or account designations
16. Waiver and Severability
No waiver by Licensor, whether express or implied, of any provision of these Terms
shall constitute a continuing waiver of such provision or a waiver of any other
provision of these Terms; nor shall Licensor be stopped from enforcing any provision
of these Terms, except by written instrument executed by Licensor. You agree that,
except as may otherwise be expressly provided herein, there shall be no third party
beneficiaries to these Terms.
18. Legal Fees
In the event of a dispute, the substantially prevailing party is entitled to recover reasonable legal fees and court costs.
Company may disclose information related to Web Publisher as it believes is reasonably necessary to comply with law enforcement, regulatory or other governmental authority, to prevent harm to Web Publisher or others, or in the event of a breach of this Agreement. In the event of a breach of this Agreement, including the Code of Conduct, the Company reserves the right to disclose Web Publisher information to law enforcement authorities and other regulatory bodies.
Notices, demands and other communications shall be in writing and sent to, as applicable, the address of Publisher provided by Publisher to Company during the on-line registration process and the address of Company as set forth on Company’s website, and shall be deemed to have been properly given:
(a) If delivered by mail, overnight courier or express, when received by addressee; or
(b) If sent by confirmed fax, one business day following receipt by addressee; or
(c) If sent by email from Company to Publisher, using the email address provided by Publisher, on the same day as the email is sent.
Publisher shall not, directly or indirectly, export or re-export any Product on the United Nations Non-Export List.
Publisher shall defend, indemnify and hold harmless Company, its affiliates and their respective officers, directors, employees, agents, successors, licensees, attorneys, suppliers and assigns, and each of them, from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties arising from (a) Publisher’s breach of Section 3 and/or the Code of Conduct; (b) Publisher’s negligence or willful misconduct; or (c) Publisher's own technology, business and Site(s).
24. Relationship between Parties
There is no relationship of agency, partnership, joint venture or employment between the parties. Neither party has the authority to bind the other nor to incur any obligation on the other’s behalf except as described in this Agreement.
25. Entire Agreement
This Agreement is the complete agreement between the parties, and supersedes all previous agreements, proposals and communications, written and oral, with respect to this subject matter. No amendment, modification or waiver of any of the provisions of this Agreement will be valid unless set forth in a writing signed by the parties to be bound thereby. The foregoing notwithstanding, if a revised, updated version of this Agreement is posted online by Company, and Publisher continues to participate in Company’s Publisher program, then Publisher is thereby agreeing to be bound by such revised terms.
26. Prohibited Use
As a condition of your signup and use of this Site, you will not use any of the
Services for any purpose that is unlawful or prohibited by these terms, conditions,
notices, Agreements. You may not use the Services in any manner that could damage,
disable, overburden, or impair any Licensor hardware, software including but not
limited to server, or the network(s) connected to any Licensor server, or interfere
with any other party's use and benefit of any Services. You may not attempt to gain
unauthorized access to any Services, accounts, systems or networks connected to
any Licensor server or to any of the Services, through hacking, password mining
or any other means. You may not obtain or attempt to obtain any materials or information
through any means not intentionally made available through the Services. If it is
determined by Company you have broken any terms of this Agreement including this
section but not limited, Company shall aggressively, using all resources persue
and prosecute you for damages any and all damages real or unreal inficted.