HasOffers Services Agreement
This HasOffers™ Services Agreement (the “Services Agreement”), the HasOffers™ Website Privacy Policy (“Privacy Policy”), together with all other applicable HasOffers™ operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”), shall constitute the entire agreement between HasOffers™, an Internet property of Adapp, Inc., a Washington State corporation (“Adapp™,” “we” or “us”), and you governing your participation as an affiliate network operator (“Network Operator”) using the affiliate network software platform operated by Adapp™ (the “HasOffers™ Platform”).
By submitting your online application to become a Network Operator (the “Application”), you are confirming that you: (a) have fully read the Agreement; (b) understand all of the terms and conditions of the Agreement; and (c) agree to be fully bound by the Agreement.
This Agreement may be amended or modified by Adapp™ after providing Network Operator, with seven (7) days prior written notice sent to the email address supplied by Network Operator with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Should we make any such amendments or modifications and notify you of same as set forth above and you continue to use the HasOffers™ Platform at any time after seven (7) days from the date of the notice, such use shall be conclusive evidence that the Network Operator has received, read and consented to the Agreement as amended or modified and further has agreed to comply with, and be bound by, all of the terms and conditions contained within the Agreement as amended or modified at that time. (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).The latest version of the Agreement will be posted on the Site, and you should review the Agreement prior to each use of the HasOffers™ Platform. Therefore, you should regularly check the Site for updates and/or changes.
1. Language of the Agreement
1.1 Where Adapp™ has provided you with a translation of the English language version of the Agreement, then you agree that the translation is provided for your convenience only and that the English language versions of the Agreement will govern your relationship with Adapp™.
2.2 If there is any disparity between the English language version of the Agreement and the translated version provided for your convenience, the English language version shall control.
2. Enrollment in the HasOffers™ Platform.
2.1 To begin the enrollment process, you must submit a complete and accurate Application via the Site. To join the HasOffers™ Platform as a Network Operator, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the HasOffers™ Platform. Adapp™ will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supply with your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Adapp™ of same to reflect such changes in your Network Operator profile.
2.2 Network Operator accepts the terms and conditions contained in this Agreement by completing Application and clicking “submit.” The Agreement is effective as of the date that Network Operator submits the Application (the “Effective Date”), provided that Adapp™ does not reject the Application. Adapp™ may reject your Application and/or terminate your participation in the HasOffers™ Platform at any time and for reasons stated below, in Adapp’s™ sole discretion. Such reasons may include, without limitation, where Adapp™ believes that: (a) you are in any way in breach of the Agreement; (b) any Ads (as that term is defined herein below) made available by and through your custom network interface website generated through use of the HasOffers™ Platform (“Custom Network”) on the HasOffers™ Platform or any of the products and/or services (“Custom Network Products”) offered by your third party advertiser partners (“Advertiser”), are unsuitable for the HasOffers™ Platform for any reason including, without limitation, that the Ads contain or links to, or that the Custom Network Products consist of, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (c) you, at any time, are conducting commercial activities that do not fully comply with all applicable local, state and federal laws, rules and regulations; and (d) you fail to pay any HasOffers™ Platform fees within seven (7) days of receipt of invoice.
2.3 Adapp™ does not represent or warrant that the information posted in the HasOffers™ Platform is accurate, complete or appropriate. You understand and agree that Adapp™ is not responsible or liable in any manner whatsoever for your inability to use the HasOffers™ Platform. You understand and agree that Adapp™ shall not be liable to you or any third party for any claim in connection with your use of the HasOffers™ Platform.
2.4 You agree not to access (or attempt to access) the HasOffers™ Platform by any means other than through the interface that is provided by Adapp™, unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Adapp™. You specifically agree not to access (or attempt to access) the HasOffers™ Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the HasOffers™ Platform.
2.5 You agree that you shall not engage in any activity that interferes with or disrupts the HasOffers™ Platform (or the servers and networks which are connected to the HasOffers™ Platform).
2.6 Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Adapp™, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the HasOffers™ Platform or your Custom Network for any purpose whatsoever. Violation of this Section 2.6 and Section 8 below shall subject you to any and all damages as set forth under this Agreement as well as those provided for by all applicable federal and state law.
2.7 You agree that you are solely responsible for (and that Adapp™ has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Adapp™ may suffer) of any such breach.
3. Passwords and Custom Network Security
3.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any Custom Network you use to access the HasOffers™ Platform.
3.2 Accordingly, you agree that you will be solely responsible to Adapp™ for all activities that occur under your Custom Network.
If you become aware of any unauthorized use of your password or of your account, you agree to notify Adapp™ immediately.
4. Network Operator/Custom Network
4.1 Adapp™ grants to Network Operator a non-exclusive, non-transferable, revocable and limited license to use the HasOffers™ Platform for a fee, if applicable, as set forth herein below, in accordance with the terms, and during the term, of the Agreement. The HasOffers™ Platform enables interested affiliate network operators to: (a) attract and register third party publishers (“Publishers”) that may then access Advertiser-provided advertisements (“Ads”) on the applicable Custom Network; (b) attract and register Advertisers that may then make their Ads available to Publishers on the applicable Custom Network; and (c) manage all aspects of the Custom Network including, without limitation, calculating commissions, tracking sales or other compensable actions, making payments and establishing rules for campaigns (d) serve Ads and/or any media files including, but not limited to videos, images, flash banners, and html files on the HasOffers™ Platform and (e) access to a list of shared offers in the HasOffers™ Platform to which you can apply for and promote upon approval by the sharing Custom Network.
4.2 Customers who buy Custom Network Products or perform any other transaction through the applicable Custom Network (“Custom Network Customers”) shall not be deemed to be the customers of Adapp™. Publishers and Advertisers that enroll in Network Operator’s Custom Network shall not be deemed to be the customers, clients or business associates of Adapp™. Adapp™ has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Network Operator and its Custom Network Customers, Advertisers or Publishers. Adapp™ shall have no obligation to resolve any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers. Network Operator expressly agrees to indemnify and hold harmless Adapp™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers.
4.3 Adapp™ may use the personal information of a Network Operator in any manner consistent with the Privacy Policy. For additional information regarding Adapp’s™ collection and use of information, please refer to the Privacy Policy.
5. Ads.
5.1 Your Custom Network shall contain Ads made available by your registered Advertisers. As a Network Operator, you agree that you are solely responsible for the Ads that you and/or your Advertisers publish, transmit and/or post by and through the HasOffers™ Platform. You agree, and shall require that your Advertisers and Publishers agree in writing, to use the HasOffers™ Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Ads that you and/or your Advertisers post on the HasOffers™ Platform, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Ads are endorsed by Adapp™, without our specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express consent and in conformance with all applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Ads that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Ads that do not fully comply with all applicable local, state and federal laws, rules and regulations. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of this Agreement and your Custom Network without notice, in the sole discretion of Adapp™. Adapp™ reserves the right to pursue any and all legal remedies against Network Operators that engage in the aforementioned prohibited conduct. If we receive reports from our Upstream Service Provider that you, your affiliates, or advertisers are transmitting chain letters, spam or junk-email, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence.
5.2 Without limiting the foregoing, Adapp™ may terminate and/or suspend any Ads at any time and for any reason, in Adapp’s™ sole discretion. Network Operator must immediately remove such Ads after any such suspension or termination, as applicable.
5.3 Notwithstanding the foregoing, Adapp™ undertakes no responsibility to monitor or otherwise police: (a) the Ads posted by you and/or your Advertisers on the HasOffers™ Platform; (b) the website linked to from the Ad (“Advertiser Website”); (c) the websites of your Publishers (“Publisher Websites”); and/or (d) any of the products and/or services offered on such Advertiser Websites and/or Publisher Websites including, without limitation, the applicable Custom Network Products. You agree that Adapp™ shall have no obligations and incur no liabilities to you in connection with any such Ads, Advertiser Websites or Publisher Websites.
6. Custom Network Products.
Adapp™ reserves the right to prohibit the marketing of any Custom Network Products at any time and for any reason, in Adapp’s™ sole discretion. Network Operator must immediately cease marketing such Custom Network Products after any such prohibition.
7. Non-Endorsement.
Adapp™ operates the HasOffers™ Platform as a neutral host, and Adapp™ does not regularly monitor, regulate or police the use of the HasOffers™ Platform by any of its participants. The participation in the HasOffers™ Platform by a Network Operator, Publisher, Advertiser, Custom Network Customer or otherwise does not constitute an endorsement by Adapp™ of that Network Operator, Publisher, Advertiser, Custom Network Customer or other third party. Adapp™ is not responsible or liable for the acts, omissions, agreements, promises, Ads, Custom Network Products, Publisher Websites, Advertiser Websites, other products, services, comments, opinions, advice, statements, offers and other information of any Network Operator, Publisher, Advertiser, Custom Network Customer or other third party using the HasOffers™ Platform.
8. Proprietary Rights.
8.1 Network Operator grants to Adapp™ a royalty free, worldwide license (“Network Operator License”) to: (a) display on, and distribute through, the HasOffers™ Platform, Site and in related marketing material produced and distributed by Adapp™, the Ads and any other information posted in the HasOffers™ Platform or otherwise made available by Network Operator, its Advertisers and/or Publishers by and through Network Operator’s Custom Network. The Network Operator License shall last for the duration of the Agreement.
8.2 Adapp™ grants to Network Operator a limited, revocable, non-transferable license to use the HasOffers™ Platform solely and exclusively as contemplated by the Agreement (“Adapp™ License”).
8.3 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, and other matters related to the HasOffers™ Platform is protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Network Operator of any part of the HasOffers™ Platform, other than as contemplated hereunder, is strictly prohibited.
8.4 Network Operator agrees that its use of the HasOffers™ Platform, any Adapp™ logos, trademarks, Transaction Tracking Codes (as defined below) and other material made available by and through the HasOffers™ Platform is subject to the Adapp™ License granted hereunder.
8.5 Network Operator does not acquire any ownership rights to the HasOffers™ Platform or any material made available by and through the HasOffers™ Platform. The availability of the HasOffers™ Platform, and the associated material, does not constitute a waiver of any rights related thereto.
9. Term and Termination.
9.1 Adapp™ may, in its sole discretion, terminate the Agreement at any time, with or without cause, upon thirty (30) days’ prior written notice to Network Operator. Network Operator may, in its sole discretion, terminate the Agreement upon thirty (30) days’ prior written notice to Adapp™.
9.2 Network Operator may terminate any Ads, Publishers and/or Advertisers at any time with or without notice.
9.3 If Network Operator’s participation in the HasOffers™ Platform expires, terminates or is suspended for any reason, Adapp™ may, with or without notice terminate or suspend all Ads and Custom Network activity immediately or, in Adapp’s™ discretion, at any time thereafter.
9.4 Upon any expiration, termination or suspension of the Agreement and/or Network Operator’s participation in the HasOffers™ Platform: (a) the Adapp™ License and any and all other licenses and rights granted to Network Operator in connection with the Agreement shall immediately cease and terminate; and (b) any and all confidential or proprietary information of Adapp™ that is in Network Operator’s possession or control must be immediately returned or destroyed. If requested, Network Operator will certify in a writing signed by Network Operator or an authorized officer of Network Operator that all such confidential and/or proprietary information has been returned or destroyed.
9.5 If Network Operator is terminated by Adapp™ for breach of the Agreement, Network Operator shall not be eligible to enter into a new Network Operator Agreement with Adapp™, or any other agreement for other Adapp™ products and/or services, and any attempt to do so shall be null and void.
9.6 Obligations that, by their nature, would survive any termination of the Agreement including, without limitation, Sections 11, 17, 19, 20, 21, 22, 25 and 26, shall survive any termination of the Agreement.
10. One (1) Month Free Trial.
Adapp™ may, in its sole discretion, offer Basic Edition Services for a period of One (1) Month from the Effective Date (the “Free Trial Period”), during which time Basic Edition Fees shall not be charged. Upon registering for the One (1) Month Free Trial of HasOffers™ Basic Edition, the credit or debit card that you provided during registration (“Active Credit Card”) will be authorized for one penny ($0.01) for a duration of three days. Network Operator agrees that its use of the HasOffers™ Platform during the Free Trial Period is provided for the purpose of sampling the Basic Edition Services. Before expiration of the Free Trial Period, you must submit to Adapp™, in writing, notice to terminate the Agreement, thereby terminating your Custom Network. If no such request is received, the Active Credit Card will be charged the Basic Edition Monthly Fee of Ninety-Nine Dollars ($99.00) for each Custom Network that you operate through the HasOffers™ Platform (“Basic Edition Monthly Fee”); or (b) you will receive an invoice for the Basic Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. For so long as your Basic Edition account is active, the Basic Edition Monthly Fee will be due and payable, beginning with the expiration of the Free Trial Period, and will recur on the same day of each new month, and you will be required to pay any and all applicable Fees for that month’s access to the HasOffers™ Platform.
11. HasOffers™ Platform Fees.
11.1 In consideration for Network Operator’s use of the HasOffers™ Platform, Network Operator agrees to pay the fees described in this Section 10.
11.2 Free Edition Fees. For Network Operators registering for the Free Edition of the HasOffers™ Platform, there shall be no fees unless and until HasOffers™ records ten thousand (10,000) clicks on the Ads used in connection with the applicable Custom Network in any given calendar month (“Ten Thousand Click Threshold”) OR HasOffers™ records one hundred thousand (100,000) impressions on the Ads used in connection with the applicable Custom Network in any given calendar month (“One Hundred Thousand Impression Threshold”) . Upon surpassing the Ten Thousand Click Threshold, the Custom Network shall automatically be upgraded to the Basic Edition and all applicable Basic Edition Fees will apply. Once HasOffers™ records one hundred thousand (100,000) impressions on the Ads used in connection with the applicable Custom Network in any given calendar month (“One Hundred Thousand Impression Threshold”) a fee of One Half Cents ($0.005) Per Thousand Impressions for every subsequent One Thousand (1,000) impressions recorded over the One Hundred Thousand Impression Threshold in any given month will be assessed (“Free Edition Impression Usage Fee”). Free Edition Impression Usage Fees will be calculated and billed based on the amount of impressions recorded for each calendar month, and either: (a) the Active Credit Card will be charged the Basic Edition Impression Usage Fee; or (b) you will receive an invoice for the Free Edition Impression Usage Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. HasOffers™ provides Free Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the clicks associated with the Ten Thousand Click Threshold and the impressions associated with the One Hundred Thousand Impression Threshold. All determinations with respect to the Ten Thousand Click Threshold and the One Hundred Thousand Impression Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator.
11.3 Basic Edition Fees. Upon registering for a Basic Edition account, expiration of the One (1) Month Free Trial, or reaching the Ten Thousand Click Threshold as set forth in Section 11.2 above and thereby automatically upgrading your Custom Network to the Basic Edition, either: (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the monthly fee of Ninety-Nine Dollars ($99.00) for each Custom Network that you operate through the HasOffers™ Platform (“Basic Edition Monthly Fee”); or (b) you will receive an invoice for the Basic Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once Adapp™ records two million (2,000,000) impressions on the Ads used in connection with the applicable Custom Network in any given calendar month (“Two Million Impression Threshold”), on top of the Basic Edition Monthly Fee, an additional fee of One Half Cents ($0.005) Per Thousand Impressions for every subsequent One Thousand (1,000) impressions recorded over the Two Million Impression Threshold in any given month will be assessed (“Basic Edition Impression Usage Fee”). Basic Edition Impression Usage Fees will be calculated and billed based on the amount of impressions recorded for each calendar month, and either: (a) the Active Credit Card will be charged the Basic Edition Impression Usage Fee; or (b) you will receive an invoice for the Basic Edition Impression Usage Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once your account has been upgraded to the Basic Edition, it shall remain at such level and you shall continue to be charged the Basic Edition Monthly Fee (even though your Custom Network may record less than ten thousand (10,000) clicks in any given month) and where applicable, the Basic Edition Impression Usage Fee unless and until HasOffers™ records two hundred fifty thousand (250,000) clicks on the Ads used in connection with the application Custom Network in any given calendar month ("Two Hundred Fifty Thousand Click Threshold"). There shall be no proration or refund of the Basic Edition Monthly Fee or the Basic Edition Impression Usage Fee in connection with any cancelation. You shall not be permitted to downgrade back to the Free Edition for any reason, including reduced activity. Any upgrade from the Free Edition to the Basic Edition shall be permanent, and you shall remain a Basic Edition subscriber unless and until you terminate this Agreement thereby terminating your Custom Network or reach the Two Hundred Fifty Thousand Click Threshold and upgrade to the Professional Edition as set forth in Section 11.4 below. HasOffers™ provides Basic Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the clicks associated with the Two Hundred Fifty Thousand Click Threshold and the impressions associated with the Two Million Impression Threshold. All determinations with respect to the Two Hundred Fifty Thousand Click Threshold and the Two Million Impression Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. Upon surpassing the Two Hundred Fifty Thousand Click Threshold, the Custom Network shall automatically be upgraded to the Professional Edition and all applicable Professional Edition Fees will apply. For so long as your Basic Edition account is activated, the Basic Edition Monthly Fee will be due and payable upon registering for a Basic Edition account, expiration of the One (1) Month Free Trial, or reaching the Ten Thousand Click Threshold and will recur on the same day of each new month, and you will be required to pay all applicable Basic Edition Fees for that month’s access to the HasOffers™ Platform.
11.4 Professional Edition Fees. Upon registering for a Professional Edition account or reaching the Two Hundred Fifty Thousand Click Threshold as set forth in Section 11.3 above and thereby automatically upgrading your Custom Network to the Professional Edition, either: (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the monthly fee of Two Hundred Seventy-Nine Dollars ($279.00) for each Custom Network that you operate through the HasOffers™ Platform (“Professional Edition Monthly Fee”); or (b) you will receive an invoice for the Professional Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once Adapp™ records five million (5,000,000) impressions on the Ads used in connection with the applicable Custom Network in any given calendar month (“Five Million Impression Threshold”), on top of the Professional Edition Monthly Fee, an additional fee of One Half Cents ($0.005) Per Thousand Impressions for every subsequent One Thousand (1,000) impressions recorded over the Five Million Impression Threshold in any given month will be assessed (“Professional Edition Impression Usage Fee”). Professional Edition Impression Usage Fees will be calculated and billed based on the amount of impressions recorded for each calendar month, and either: (a) the Active Credit Card will be charged the Professional Edition Impression Usage Fee; or (b) you will receive an invoice for the Professional Edition Impression Usage Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once your account has been upgraded to the Professional Edition, it shall remain at such level and you shall continue to be charged the Professional Edition Monthly Fee (even though your Custom Network may record less than two hundred fifty thousand (250,000) clicks in any given month) and where applicable, the Professional Edition Impression Usage Fee unless and until HasOffers™ records five hundred thousand (500,000) clicks on the Ads used in connection with the applicable Custom Network in any given calendar month ("Five Hundred Thousand Click Threshold") as more fully set forth in Section 11.5 below) or you provide HasOffers™ with written notice of your desire to downgrade back to the Basic Edition. After receipt of such notice, such downgrade shall be effective beginning with the first day of the next monthly billing cycle after such downgrade notice is delivered to HasOffers™. There shall be no proration or refund of the Professional Edition Monthly Fee or the Professional Edition Impression Usage Fee in connection with any downgrade or cancellation. You shall be permitted to downgrade one time only due to reduced activity. Any subsequent upgrade due to increased activity shall result in a permanent return to the Professional Edition, and you shall remain a Professional Edition subscriber unless and until you terminate this Agreement thereby terminating your Custom Network or reach the Five Hundred Thousand Click Threshold and upgrade to the Enterprise Edition as set forth in Section 11.5 below. HasOffers™ provides Professional Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the clicks associated with the Five Hundred Thousand Click Threshold and the impressions associated with the Five Million Impression Threshold. All determinations with respect to the Five Hundred Thousand Click Threshold and the Five Million Impression Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. Upon surpassing the Five Hundred Thousand Click Threshold, the Custom Network shall automatically be upgraded to the Enterprise Edition and all applicable Enterprise Edition Fees will apply. For so long as your Professional Edition account is activated, the Professional Edition Monthly Fee will be due and payable upon registering for a Professional Edition account or reaching the Two Hundred Fifty Thousand Click Threshold and will recur on the same day of each new month, and you will be required to pay all applicable Professional Edition Fees for that month’s access to the HasOffers™ Platform.
11.5 Enterprise Edition Fees. Upon registering for an Enterprise Edition account or reaching the Five Hundred Thousand Click Threshold as set forth in Section 11.4 above and thereby automatically upgrading your Custom Network to the Enterprise Edition, either: (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the monthly fee of Seven Hundred and Ninety-Nine Dollars ($799.00) for each Custom Network that you operate through the HasOffers™ Platform (“Enterprise Edition Monthly Fee”); or (b) you will receive an invoice for the Enterprise Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once HasOffers™ records two million (2,000,000) clicks on the Ads used in connection with the applicable Custom Network in any given calendar month (“Two Million Click Threshold), on top of the Enterprise Edition Monthly Fee, an additional fee of One Twenty Fifth Cents ($0.0004) for every subsequent click recorded over the Two Million Click Threshold in any given month will be assessed (“Enterprise Edition Click Usage Fees”). Once HasOffers™ records ten million (10,000,000) impressions on the Ads used in connection with the applicable Custom Network in any given calendar month (“Ten Million Impression Threshold), on top of the Enterprise Edition Monthly Fee and the Enterprise Edition Click Usage Fee, an additional fee of One Half Cents ($0.005) Per Thousand Impressions for every subsequent One Thousand (1,000) impressions recorded over the Ten Million Impression Threshold in any given month will be assessed (“Enterprise Edition Impression Usage Fee”). Enterprise Edition Impression Usage Fees and Enterprise Edition Click Usage Fees will be calculated and billed based on the amount of impressions and clicks recorded for each calendar month, and either: (a) the Active Credit Card will be charged the Enterprise Edition Impression Usage Fee and the Enterprise Edition Click Usage Fee; or (b) you will receive an invoice for the Enterprise Edition Impression Usage Fee and the Enterprise Edition Click Usage Fee which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. Once your account has been upgraded to the Enterprise Edition, it shall remain at such level and you shall continue to be charged the Enterprise Edition Monthly Fee (even though your Custom Network may record less than five hundred thousand (500,000) clicks in any given month) and where applicable, the Enterprise Edition Click Usage Fee and the Enterprise Edition Impression Usage Fee unless and until you provide HasOffers™ with written notice of your desire to downgrade back to the Professional Edition (an Enterprise Edition Custom Network shall not be eligible to downgrade to the Basic Edition). After receipt of such notice, such downgrade shall be effective beginning with the first day of the next monthly billing cycle after such downgrade notice is delivered to HasOffers™. There shall be no proration or refund of the Enterprise Edition Monthly Fee, Enterprise Edition Click Usage Fee, or Enterprise Edition Impression Usage Fee in connection with any downgrade or cancelation. You shall be permitted to downgrade one time only due to reduced activity. Any subsequent upgrade due to increased activity shall result in a permanent return to the Enterprise Edition, and you shall remain an Enterprise Edition subscriber unless and until you terminate this Agreement thereby terminating your Custom Network. HasOffers™ provides Enterprise Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the clicks associated with the Two Million Click Threshold and the impressions associated with the Ten Million Impression Threshold. All determinations with respect to the Two Million Click Threshold and the Ten Million Impression Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. For so long as your Enterprise Edition account is activated, the Enterprise Edition Monthly Fee will be due and payable upon registering for an Enterprise Edition account or reaching the Five Hundred Thousand Click Threshold and will recur on the same day of each new month, and you will be required to pay all applicable Enterprise Edition Fees for that month’s access to the HasOffers™ Platform.
11.6 Media Usage Fees. Upon registering for any HasOffers™ edition, all media files used as, or in conjunction with any Ads served on the HasOffers™ Platform shall be subject to a fee. Custom Networks using the Standard Media Usage will be charged a fee of One Dollar ($1.00) per Gigabyte (1,000,000,000 bytes) Transfer (“Standard Media Usage Fees”). Custom networks that use the CDN Media Usage will be charged a fee of Two Dollars ($2.00) per Gigabyte (1,000,000,000 bytes) Transfer (“CDN Media Usage Fees”). Media files include, but are not limited to videos, images, flash banners, and html files. The total amount of all Gigabytes Transferred in your Custom Network will be subject to either the Standard Media Usage Fees or the CDN Media Usage Fees based upon which option your Custom Network has selected. The amount of Gigabyte Transfers for which you will be charged includes all media files served by both you AND your affiliates using your Custom Network. Network Operator shall be responsible for paying any and all applicable Media Usage Fees. Both Standard Media Usage Fees and CDN Media Usage Fees will be calculated and billed based on the amount of Gigabytes recorded for each calendar month and will be calculated seven (7) days after the close of the billing calendar month at which time either (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the Media Usage Fees; or (b) you will receive an invoice for the Media Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. All determinations with respect to the amount of Gigabytes shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. You shall continue to be charged Media Usage Fees for each Gigabyte recorded unless and until you terminate this Agreement thereby terminating your Custom Network. You will be responsible for all unpaid Media Usage Fees accrued prior to account termination and those fees will become due immediately upon account termination.
11.7 Offer Exchange Fees. Upon registering for the Basic, Professional, or Enterprise Edition (Excluding the Free Edition), and participating in the Offer Exchange Feature, you are able to share your exclusive offers with other Custom Networks using the HasOffers™ Platform (“Offer Exchange Services”). Each conversion recorded by using the Offer Exchange Services shall be subject to a fee of Five Percent (5%) of the Payout (“Offer Exchange Fees”). Offer Exchange Fees will be calculated and billed based on each calendar month’s total Payout from all applicable conversions and will be calculated seven (7) days after the close of the billing calendar month at which time either (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the Offer Exchange Fees; or (b) you will receive an invoice for the Offer Exchange Fees which must be paid, in full, upon receipt, with the payment method to be determined by Adapp™ in its sole discretion. All determinations with respect to the total Payout recorded for all conversions generated by the Offer Exchange Services shall be made by Adapp™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. The Offer Exchange Services will be closely monitored by Adapp™. All attempts to bypass the Offer Exchange Fees will not be tolerated, and Offer Exchange Fees will continue to be applied. You will be charged the Offer Exchange Fees for all applicable conversions. You shall continue to be charged Offer Exchange Fees for all conversions generated by your participation in the Offer Exchange Services unless and until you terminate this Agreement thereby terminating your Custom Network. You will be responsible for all unpaid Offer Exchange Fees accrued prior to account termination and those fees will become due immediately upon account termination.
11.8 Adapp’s™ authorization to provide and bill for your use of the HasOffers™ Platform is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. All Fees are payable in United States currency, and such Fees will appear on your Active Credit Card bill as “Adapp, Inc.” You acknowledge and agree that Adapp™ will not obtain additional authorization from you for each monthly billing.
11.9 Network Operator shall be responsible for paying any and all applicable sales tax (if any) due to all taxing authorities arising from, or in connection with, Network Operator’s participation in the HasOffers™ Platform including, without limitation, taxes and related fees, costs and penalties incurred by Network Operator, its Advertisers and/or Publishers pursuant to Chapter 57 of the Laws of 2009 amending the New York State Tax Law.
11.10 Failure to use the HasOffers™ Platform does not constitute a basis for refusing to pay any of the associated Fees. The following conditions apply to any cancellation: (a) you shall not receive any pro-rata refund of your Fees for partial months; and (b) you shall not receive any refund for amounts previously paid up to the date of cancellation or termination and you remain liable for any and all unpaid charges billed by Adapp™.
11.11 You agree to be bound by Billing Practices of Adapp™ in effect at any given time. Upon prior written notice to you (with e-mail sufficing), Adapp™ reserves the right to change its Billing Practices whenever necessary, in its sole discretion. Adapp™ may change any HasOffers™ Platform fees upon thirty (30) days prior written notice sent to the email address supplied by Network Operator with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Continued membership in the HasOffers™ Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If you do not agree with these changes, you may cancel your Network Operator account at any time, but you will remain responsible for timely payment of any and all Fees that you have already incurred (including any applicable late fees).
11.12 Where Network Operator fails to make any scheduled payment for accrued Fees, such overdue amounts will be subject to interest charges in the amount of one and one half percent (1.5%) per month, compounded monthly. Network Operator’s account may be deactivated, and access to the HasOffers™ Platform and/or Site denied, for non-payment.
12. HasOffers™ Platform Service.
12.1 Free Edition Services. n connection with the services made available by Adapp™ to its Free Edition Network Operators, Adapp™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) up to ten thousand (10,000) clicks on the Ads during each calendar month; (d) access to e-mail support services, excluding weekends and national and Adapp™ recognized holidays; (e) tracking of Ad impressions and/or clicks, transactions made in connection with the Ads and commissions derived therefrom (“Transaction Data”) using Adapp™ proprietary transaction tracking codes (“Transaction Tracking Codes”); (f) reporting tools to be used in connection with monitoring Custom Network activities (collectively, “Free Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, Adapp™ guarantees 99.5% Custom Network availability to its Free Edition customers and such availability shall include the functioning of all Free Edition Service infrastructure.
12.2 Basic Edition Services. In connection with the services made available by Adapp™ to its Basic Edition Network Operators, Adapp™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) access to e-mail support services, excluding weekends and national and Adapp™ recognized holidays; (d) tracking of Ad impressions and/or clicks, transactions made in connection with the Ads and commissions derived therefrom (“Transaction Data”) using Adapp™ proprietary transaction tracking codes (“Transaction Tracking Codes”); (e) reporting tools to be used in connection with monitoring Custom Network activities; (f) up to two hundred fifty thousand (250,000) clicks on the Ads during each calendar month; and (g) up to two million (2,000,000) impressions on the Ads during each calendar month (with additional impressions billed pursuant to the Basic Edition Impression Usage Fee terms set forth in Section 11.3 above) (collectively, “Basic Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, Adapp™ guarantees 99.5% Custom Network availability to its Basic Edition customers and such availability shall include the functioning of all Basic Edition Service infrastructure.
12.3 Professional Edition Services. In connection with the services made available by Adapp™ to its Professional Edition Network Operators, Adapp™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) a Custom Network domain (optional); (d) a Custom Tracking URL (optional); (e) access to chat and e-mail support services, excluding weekends and national and Adapp™ recognized holidays; (f) tracking of Ad impressions and/or clicks, transactions made in connection with the Ads and commissions derived therefrom (“Transaction Data”) using Adapp™ proprietary transaction tracking codes (“Transaction Tracking Codes”); (g) Fraud Score™, a fraud detection and prevention technology designed to assist Network Operators with their Custom Networks; (h) Advertiser Management, a feature that allows you to add and manage advertiser accounts (i)reporting tools to be used in connection with monitoring Custom Network activities; (j) up to five hundred thousand (500,000) clicks on the Ads during each calendar month; and (k) up to five million (5,000,000) impressions on the Ads during each calendar month (with additional impressions billed pursuant to the Professional Edition Impression Usage Fee terms set forth in Section 11.4 above) (collectively, “Professional Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, Adapp™ guarantees 99.8% Custom Network availability to its Professional Edition customers and such availability shall include the functioning of all Professional Edition Service infrastructure.
12.4 Enterprise Edition Services. In connection with the services made available by Adapp™ to its Enterprise Edition Network Operators, Adapp™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) a Custom Network domain (optional); (d) a Custom Tracking URL (optional); (e) unlimited access to all features within the HasOffers™ Platform, including the HasOffers™ Network API, only available to Enterprise users (f) extended access to chat and e-mail support services, excluding weekends and national and Adapp™ recognized holidays; (g) access to telephone support services (without charge for the first five (5) calls during each calendar month); (h) customized branded layout of the Custom Network by Adapp's™ graphics team; (i) extended access to telephone support services excluding weekends and national and Adapp™ recognized holidays; (j) tracking of Ad impressions and/or clicks, transactions made in connection with the Ads and commissions derived therefrom (“Transaction Data”) using Adapp™ proprietary transaction tracking codes (“Transaction Tracking Codes”); (k) Fraud Score Plus™, a fraud detection and prevention technology designed to assist Network Operators with their Custom Networks; (l) Advertiser Management, a feature that allows you to add and manage advertiser accounts (m) live reporting tools to be used in connection with monitoring Custom Network activities; (n) increased storage limits; (o) dedicated server resources for increased performance and (p) advanced data migration of offers, advertisers and affiliates from an existing database which is owned by Network Operator (q) up to two million (2,000,000) clicks on the Ads during each calendar month (with additional clicks billed pursuant to the Enterprise Edition Click Usage Fee terms set forth in Section 11.5 above); and (r) up to ten million (10,000,000) impressions on the Ads during each calendar month (with additional impressions billed pursuant to the Enterprise Edition Impression Usage Fee terms set forth in Section 11.5 above) (collectively, “Enterprise Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, Adapp™ guarantees 99.8% Custom Network availability to its Enterprise Edition customers and such availability shall include the functioning of all Enterprise Edition Service infrastructure.
12.5 HasOffers™ Support. All HasOffers™ support, including, but not limited to email, chat, and phone support will be provided in the English Language only. Although Adapp™ may make the HasOffers™ Platform available in different languages, all customer support will be provided in English only.
12.6 Offer Exchange Services. In connection with the services made available by Adapp™ to its Basic, Professional, or Enterprise Edition Network Operators (excluding Free Edition Users), Adapp™ shall provide such Network Operators with access to a list of shared offers in the HasOffers™ Platform to which you can apply for and promote upon approval by the sharing Custom Network. In connection with the services made available by Adapp™ to its Basic, Professional, or Enterprise Edition Network Operators (excluding Free Edition Users), Adapp™ shall provide such Network Operators with the opportunity to share your exclusive offers with other Custom Networks allowing them to promote your offers after you approve them to do so. You may only share offers to which you have exclusive rights to. All offers must first be verified and approved by Adapp™ in order to confirm that you have exclusive rights to each offer that you are sharing in the HasOffers™ Platform. Adapp™ has the sole authority to determine which offers are listed in the Offer Exchange Services. Any offers listed in the Offer Exchange Services may be removed at any time and for any reason, in Adapp’s™ sole discretion.
12.7 Adapp™ may make available, for additional fees that Adapp™ shall publish from time-to-time, enhanced reporting capabilities and/or other services that are not included in the standard Adapp™ services packages.
12.8 Adapp™ has subsidiaries and affiliated legal entities around the world ("Subsidiaries and Affiliates"). Sometimes, these companies will be providing services to you on behalf of Adapp™ itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.12.9 Adapp™ is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the HasOffers™ Platform which Adapp™ provides may change from time to time without prior notice to you.
12.10 The HasOffers™ Platform which you use may be updated from time to time from Adapp™. These updates are designed to improve, enhance and further develop the HasOffers™ Platform and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Adapp™ to deliver these to you) as part of your use of the HasOffers™ Platform.
12.11 You acknowledge and agree that while Adapp™ may not currently have set a fixed upper limit on the number of transmissions you may send or receive through your Custom Network or on the amount of storage space used for the provision of your Custom Network, such fixed upper limits may be set by Adapp™ at any time, at Adapp's™ discretion.
13. API Rate Limiting
13.1 The HasOffers™ Platform API only allows you to make a limited number of calls in a given hour. The default rate limit for calls to the REST API is 60 requests per hour. The REST API does both account and IP-based rate limiting. Authenticated API calls are charged to the authenticating user's limit while unauthenticated API calls are deducted from the calling IP address' allotment. Rate limiting only applies to methods that request information with the HTTP GET command. API methods that use HTTP POST to submit data to HasOffers™, such as user information do not affect rate limits. Additionally, requests to account/rate_limit_status are not charged to a limit. Your Custom Network should recognize it is being rate-limited by the REST API if it begins to receive HTTP 400 response codes. It is best practice for Custom Networks to monitor their current rate limit status and dynamically throttle requests if necessary. The REST API offers two ways to observe this status: (a) the account/rate_limit_status method. Calling this method does not count against the requestor's API limit and (b) HTTP response headers included in all REST API responses which count against the rate limit: (1) X-RateLimit-Limit the current limit in effect; (2) X-RateLimit-Remaining the number of hits remaining before you are rate limited and (3) X-RateLimit-Reset the time the current rate limiting period ends in epoch time.
13.2 Whitelisting. Some Custom Networks find that the default limit proves insufficient. Under such circumstances, we offer whitelisting. It is possible to whitelist both accounts and IP addresses. Each whitelisted entity, whether an account or IP address, is allowed 20000 requests per hour. If you have a Custom Network that should be considered for whitelisting, please fill out the whitelisting request form. Our manual review process can take up to a week. If you have a whitelisting that needs to be updated through the addition or removal of IP addresses, reapply with an explanation of the change. Approval or rejection for whitelisting requests is emailed to the email address associated with the account that filed the application.
13.3 Avoiding the Rate Limiter. The same general techniques and design decisions can be used to avoid the crunch of the rate limiter: (a) Caching: Store API responses in your application or on your site if you expect high-volume usage. For example, don't try to call the HasOffers™ API on every page load of your hugely popular website. Instead, call our API infrequently, cache the response on your end, and display the local version on page loads. (b) Prioritize active users: If your site keeps track of many Custom Network users (for example, fetching their statistics), consider only requesting data for users who have recently signed into your site. (c) Search back-offs: If your application monitors a high volume of search terms, query less often for searches that have no results than for those that do. By using a back-off you can keep up to date on queries that are hot but not waste cycles requesting queries that very rarely change.
13.4 Blacklisting. We ask that you honor the rate limit. Consistent failure to avoid the rate-limiter will signal Adapp™ to automatically blacklist your Custom Network. You know that you are blacklisted if your user is unable to get a response for a request sent to the API. It appears as if API calls are sent down a blackhole. If your Custom Network has been blacklisted and you would like service reinstated please do the following: (a) if you are using the REST API, make a call to the account/rate_limit_status from the account or computer in question; (b) explain why you think your Custom Network was blacklisted and (c) describe how you have fixed the problem that resulted in blacklisting. Send that information in an email to our support email so we can get you back online.
14. Advertisements
14.1 The HasOffers™ Platform may be supported by advertising revenue and may display advertisements and promotions on the Free Edition. These advertisements may be targeted to the content of information stored on the HasOffers™ Platform, queries made through the HasOffers™ Platform or other information.
14.2 The manner, mode and extent of advertising by Adapp™ on the HasOffers™ Platform (Free Edition) are subject to change without specific notice to you.
14.3 In consideration for Adapp™ granting you access to and use of the HasOffers™ Platform (Free Edition), you agree that Adapp may place such advertising on the HasOffers™ Platform.
15. Other Content
15.1 The HasOffers™ Platform may include hyperlinks to other web sites or content or resources. Adapp™ may have no control over any web sites or resources which are provided by companies or persons other than Adapp™.
15.2 You acknowledge and agree that Adapp™ is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
15.3 You acknowledge and agree that Adapp™ is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
16. General Legal Terms
16.1 Sometimes when you use the HasOffers™ Platform, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Agreement does not affect your legal relationship with these other companies or individuals.
16.2 The Agreement constitutes the whole legal agreement between you and Adapp™ and govern your use of the HasOffers™ Platform (but excluding any services which Adapp™ may provide to you under a separate written agreement), and completely replace any prior agreements between you and Adapp™ in relation to the HasOffers™ Platform.
16.3 You agree that Adapp™ may provide you with notices, including those regarding changes to the Agreement by email and/or regular mail.
16.4 You agree that if Adapp™ does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Adapp™ has the benefit of under any applicable law), this will not be taken to be a formal waiver of Adapp's™ rights and that those rights or remedies will still be available to Adapp™.
16.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
16.6 You acknowledge and agree that each member of the group of companies of which Adapp™ is the parent shall be third party beneficiaries to the Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Agreement.
16.7 The Agreement, and your relationship with Adapp™ under this Agreement, shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. You and Adapp™ agree to submit to the exclusive jurisdiction of the courts located within the county of King, Washington to resolve any legal matter arising from the Agreement. Notwithstanding this, you agree that Adapp™ shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17. Representations and Warranties.
Network Operator hereby represents and warrants to Adapp™ as follows:
17.1 The Agreement has been duly and validly executed and delivered by Network Operator and constitutes Network Operator’s legal, valid and binding obligation which is fully enforceable against Network Operator in accordance with its terms;
17.2 Network Operator is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Network Operator’s duties and obligations pursuant to the Agreement;
17.3 Network Operator understands and agrees that Adapp™ will enter into similar agreements with other Adapp™ Network Operators in direct competition with Network Operator;
17.4 Network Operator understands and agrees that Network Operator has independently evaluated the desirability of participating in the HasOffers™ Platform and that Network Operator has not relied on any representation and/or warranty other than those set forth in the Agreement;
17.5 The execution, delivery and performance by Network Operator of the Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Network Operator is subject; (b) any order, judgment or decree applicable to Network Operator; (c) any provision of Network Operator’s corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Network Operator;
17.6 Network Operator’s performance under the Agreement, the Ads, Custom Network, Custom Network Products, Advertiser Websites and Publisher Websites, and any and all material featured and/or linked to therein, will not: (a) invade the right of privacy or publicity of any third person; (b) involve any libelous, obscene, indecent or otherwise unlawful material; (c) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (d) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
17.7 The Ads and any and all other information posted by Network Operator to the HasOffers™ Platform will comply with the provisions of Section 5.1.
17.8 There is no pending or, to the best of Network Operator’s knowledge, threatened claim, action or proceeding against Network Operator; and
17.9 Network Operator will be solely responsible for the material and Ads that appear in the Custom Network.
17.10 With respect to the Fraud Score™ and Fraud Score Plus™ tools, Adapp™ makes no warranties or representations as to the accuracy of the results, and encourages all Network Operators to conduct full due diligence on potential affiliates and to actively manage their networks to most effectively prevent, detect and eliminate fraudulent activity.
18. Publicity.
Network Operator shall not create, publish, distribute or permit any written material that makes reference to Adapp™ without first submitting such material to Adapp™ and receiving prior written consent from Adapp™, which Adapp™ may withhold in its sole discretion; provided, however, that Network Operator can promote its Content and/or its CP Channel by publishing and promoting the Uniform Resource Locator (“URL”) associated with the applicable Content and/or CP Channel in accordance with any and all applicable state and federal laws, statutes, rules and regulations.
19. Collection and Use of Data.
Adapp™ does not collect information about a Network Operator’s Custom Network-related transactions, other than what it receives directly from Network Operator or through the installed Transaction Tracking Codes. Adapp™ reserves the right to utilize this data on a non-personally identifiable, aggregate basis, which may include Network Operator’s information, to analyze the performance of the HasOffers™ Platform and/or Site, monitor the use of the Transaction Tracking Codes and promote HasOffers™ Platform and/or Site performance and functionality.
20. Indemnification.
Network Operator agrees to indemnify, defend and hold Adapp™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any claim related to:
A. Ads, Advertiser Websites, Publisher Websites, Custom Network Products and any and all other information, products and/or services posted, made available and/or linked to in connection with the Ads, Advertiser Websites, Publisher Websites and/or Network Operator’s participation in the HasOffers™ Platform;
B. Any act or omission of any Publisher, Advertiser and/or Custom Network Customer; C. Network Operator’s breach of the Agreement and/or any representation or warranty contained herein; D. Any claim that Adapp™ is obligated to pay any taxes in connection with Network Operator’s participation in the HasOffers™ Platform; and/orE. Network Operator’s participation in the HasOffers™ Platform in any manner whatsoever.
21. EXCLUSION OF WARRANTIES
21.1 NOTHING IN THIS AGREEMENT, INCLUDING SECTIONS 20 AND 21, SHALL EXCLUDE OR LIMIT ADAPP'S™ WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
21.2 IN PARTICULAR, ADAPP™ , ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(C) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED
21.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HASOFFERS™ PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
22. Disclaimers/Limitation of Liability.
22.1 THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ADAPP™ HAS NO LIABILITY, WHATSOEVER, TO NETWORK OPERATOR, ANY CUSTOM NETWORK CUSTOMER, ADVERTISER, PUBLISHER OR ANY OTHER THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR NETWORK OPERATOR’S USE OF, OR INABILITY TO USE, THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES. ADAPP™ DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT NETWORK OPERATOR’S USE OF THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, ADAPP™ IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ADAPP™ AND NETWORK OPERATOR. THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES WOULD NOT BE PROVIDED TO NETWORK OPERATOR WITHOUT SUCH LIMITATIONS. ADAPP™ MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE HASOFFERS™ PLATFORM, SITE, TRANSACTION TRACKING CODES AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY NETWORK OPERATOR FROM ADAPP™ THROUGH THE HASOFFERS™ PLATFORM, SITE AND/OR OTHERIWSE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
22.2 UNDER NO CIRCUMSTANCES SHALL ADAPP™ BE LIABLE TO NETWORK OPERATOR, CUSTOM NETWORK CUSTOMERS, PUBLISHERS, ADVERTISERS OR ANY OTHER THIRD PARTY IN ANY MANNER WHATSOEVER ARISING FROM NETWORK OPERATOR’S PARTICIPATION IN THE HASOFFERS™ PLATFORM. ADAPP’S™ MAXIMUM AGGREGATE LIABILITY TO NETWORK OPERATOR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). NETWORK OPERATOR recognizes and acknowledges that this limitation of damages is fair and reasonable.
23. Force Majeure.
Other than for payment obligations arising hereunder, both parties agree that neither party will be liable, or be considered to be in breach of the Agreement, on account of either party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond either party’s reasonable control and such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
24. Electronic Signatures.
You acknowledge and agree that by clicking on the “submit” button, or such similar links as may be designated by Adapp™ as a means of accepting the Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY ADAPP™. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
25. Dispute Resolution Provisions.
The Agreement shall be treated as though it were executed and performed in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of the Agreement, or the breach of same by any party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending arbitration. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Adapp™ and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Adapp™ incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement and does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above.
26. Miscellaneous.
26.1 Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
26.2 Network Operator agrees that any unauthorized and/or unlawful use of the HasOffers™ Platform would result in irreparable injury to Adapp™ for which monetary damages would be inadequate. In such event, Adapp™ shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against Network Operator without the need to post a bond. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Adapp™.
26.3 Adapp™ and Network Operator are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Network Operator has no authority to make or accept any offers or representations on behalf of Adapp™. Network Operator is prohibited from making any statement, whether on the HasOffers™ Platform or otherwise, that could possibly contradict anything in this Section 26.3.
26.4 To the extent that anything in or associated with the Site, HasOffers™ Platform, Privacy Policy, or any other applicable Adapp™ operating rules, policies, price schedules and other supplemental terms and conditions or documents, is in conflict or inconsistent with this Services Agreement, this Services Agreement shall take precedence.
26.5 Adapp’s™ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
26.6 Any attempt by any individual, whether or not Network Operator, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the HasOffers™ Platform is a violation of both criminal and civil law and Adapp™ will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
26.7 Network Operator is not permitted to transfer any rights and obligations pursuant to the Agreement without the express written consent of Adapp™. Any attempt to do so will result in the immediate termination of the Agreement. Adapp™ may assign or transfer any rights and obligations pursuant to the Agreement without the consent of Network Operator. The Agreement will be binding on, inure to the benefit of and be enforceable against Adapp’s™ successors and assigns.
26.8 This Service Agreement, the Privacy Policy, together with all other applicable Adapp™ operating rules, policies, price schedules and other supplemental terms and conditions or documents, is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of the Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. There are no third party beneficiaries of the Agreement. The headings of sections or other subdivisions of the Agreement will not affect in any way the meaning or interpretation of the Agreement.
26.9 Adapp™ may provide notices to Network Operator by posting notices or links to notices in the Network Operator account area. Notices to Network Operator may also be made via e-mail, regular mail, overnight courier or facsimile at Network Operator’s contact addresses of record as posted on the Site. If Network Operator wishes to provide notice to Adapp™, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: 2220 Western Avenue, Seattle, WA 98121. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by authorized Adapp™ personnel.
