1. INTRODUCTION. Congoo LLC d/b/a ContentNet agrees to provide you and, if applicable, Authorized Users, access to the ContentNet.com Services, subject to your acceptance of and compliance with these Terms and Conditions, and the terms and conditions of any applicable insertion order(s) that you or your Affiliate(s) enter into that specifically references these Terms and Conditions and/or applicable Program Terms (each "Insertion Order" ) (collectively, the "Agreement" ).
2. In this Agreement, (i) "we," "us," and "our" mean ContentNet and its officers, directors, consultants, contractors, agents, attorneys, employees, and third-party service providers, (ii) "ContentNet Websites" means all the website pages, including any custom branded page, that are owned, operated, authorized, or hosted by or for ContentNet, (iii) "ContentNet Code" is proprietary software code and related tools that we may offer to you in connection with the ContentNet Services, and which are part of such Program, (iv) "you" and "your" mean the entity electronically accepting the Agreement, or the company named in an Insertion Order, and any of its Affiliates that execute an Insertion Order for any Program, (v) "Affiliate" means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, (vi) "Authorized Users" means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf, and your Affiliates that access a Program without executing their own separate Insertion Order, and personally identifiable information, (vii) "Program" means the specific ContentNet program to which you agree to enter, and (viii) "Program Terms" means ContentNet’s then-current terms and conditions governing a Program. Terms used but not defined herein have the meanings given to such terms in any Program Terms or Insertion Order, as applicable. Terms used in any Program Terms or Insertion Order, but not defined therein, have the meanings given to such terms in these Advertiser Terms and Conditions. All definitions apply both to their singular and plural forms, as the context may require.
3. CHARGES, FEES, AND PAYMENT. For any and all services you purchase from ContentNet, you will pay us for all charges and fees you incur in connection with each Program in US Dollars Only. Our measurements are the definitive and exclusive measurements under the Agreement and will be used to calculate your charges. We will either bill your selected Payment Method for all such charges and fees in connection with each Campaign, or, if we have determined that you may be billed on an invoice basis, we will submit an invoice to you at the e-mail or mailing address (at our discretion) on the Insertion Order or as required by applicable law, and you will pay such charges in full within 30 days of the invoice date. All payments of service fees, unused promotional credits, are non-refundable and are the property of ContentNet. Any disputes about charges to your account(s) must be submitted to us in writing within 30 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge. If you fail to make payment on an invoice as set forth herein, you will pay a late fee equal to 1% monthly (or the highest amount allowed by law if less than 1% monthly) of all past due charges, and all reasonable expenses (including attorneys’ fees) incurred by us in collecting such charges. Charges and fees do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due to us hereunder. Accounts with no activity for more than 24 months will be closed by us. If a balance remains (other than unused promotional credits), we will attempt to refund any portion of such balance that may be owed to you. If we are unable to refund any such balance using your contact information on file with us, we will dispose of the balance pursuant to the Agreement and our policies and procedures.
4. ACCESS You will not: (i) use any automated means, including agents, robots, scripts, or spiders to access, monitor, scrape, or manage your account(s) with us, or to access, monitor, scrape or copy the ContentNet Websites or ContentNet systems or any data therein, (ii) bypass any robot exclusion headers on the ContentNet Websites (including using any device, software, or routine to accomplish that goal), (iii) interfere or attempt to interfere with the proper working of the ContentNet Websites, Programs, or ContentNet systems, (iv) use or combine our Programs with software offered under an open source license which create any obligations with respect to our Programs contrary to the Agreement, or grant to any third party any rights to, or immunities under, our intellectual property or proprietary rights in our Programs, or (v) make available to us or our Affiliates any personally identifiable information of visitors, users, or customers of your website(s) in connection with your access or use of our Program(s). Our Programs, including your password(s) related to your account(s), may not be used by, or made available to, any third party, except Authorized Users. You are solely responsible for the security of passwords issued to you. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us (e.g., the unauthorized disclosure or use of your username or password). Authorized Users must comply with the Agreement and you are liable for their acts and omissions in connection with the Agreement, and any charges, costs, fees, or expenses they may accrue. You may use data made available to you in connection with a Program solely for internal use to manage your advertising account(s) with us and you will neither publish such data nor create profiles of our users. In order to improve our Programs, we frequently test traffic, implementations, and/or features, and you will pay for all charges as set forth in the applicable Insertion Order or your online account (e.g., impressions, clicks) during those tests. We may redesign or modify the organization, specifications, structure, and/or appearance of any location where your ads may be displayed. Further, we reserve the right to modify or discontinue offering any Program or part thereof. Your Information (as defined below), promotions (if applicable), and ads must comply with our policies and specifications, which we may change from time to time.
5. YOUR SITE AND INFORMATION. We are not responsible for any aspect of your or any third-party website(s). You represent, warrant, and covenant that: (i) all information you provide or use (including our suggestions) in connection with the Agreement and/or on your website, including all creative, titles, descriptions, trademarks, listings, abstracts, ad target options, domain names, content of ads, data, data feeds, Content, and URLs (each of the foregoing, individually and collectively, "Information" ) is, and will be updated to remain, current and accurate, (ii) the website to which any ad links will look substantially the same to all end users regardless of the end users’ location, (iii) your website does not contain any content owned or licensed by us, including any ads published by us or through the Distribution Network, except pursuant to a separate signed agreement with us, and (iv) your Information is either original to you or you have secured all necessary rights and licenses for its use as contemplated by the Agreement, and you are responsible for all royalties, payments, and fees with respect thereto (e.g., performing rights society fees).
6. USE OF INFORMATION. In order to participate in any Program, you grant ContentNet a non-exclusive, royalty-free, worldwide license in connection with all Programs to: (i) use, copy, adapt, reformat, recompile, communicate by telecommunication, truncate, edit, and/or modify any part of the Information for public performance, public display, and distribution, (ii) access, index, cache, and display the website(s) to which your ads link, or any portion thereof, by any means, including web spiders and/or crawlers, (iii) create and display copies of any text, images, graphics, audio, or video on the websites to which your ads link, and (iv) distribute your ads through the Distribution Network. None of ContentNet or its Affiliates will have any liability for your ads or Information. You will provide all Information to us for our review before it is posted to the Distribution Network. ContentNet. may refuse, reject, cancel, or remove any ad, Information, or space reservation at its discretion at any time. Your ads may be subject to inventory availability, and the final decision as to ad relevancy is at our sole discretion. We do not guarantee that your ads will be placed in, or available through, any part of the Distribution Network, nor do we guarantee that your ads will appear in a particular position or rank.
9. INDEMNIFICATION. You will indemnify, defend, and hold harmless ContentNet and its Affiliates from all claims, whether actual or alleged (collectively, "Claims"), that arise out of or in connection with your Information and/or ads, your or Authorized Users’ use of any Program, ContentNet system, or ContentNet Websites, your website, or your or Authorized Users’ breach of the Agreement. You are solely responsible for defending any Claim against ContentNet and/or its Affiliates, subject to such ContentNet right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against ContentNet or its Affiliates, provided that you will not agree to any settlement that imposes any obligation or liability on ContentNet or any of its Affiliates without ContentNet’s prior express written consent.
10. WARRANTY DISCLAIMER. THE PROGRAMS, DISTRIBUTION NETWORK, CONTENTNET SYSTEMS, CONTENTNET WEBSITES, CONTENTNET CODE, AND DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. WE HEREBY DISCLAIM ON BEHALF OF CONTENTNET AND ITS AFFILIATES ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF CONTENTNET OR ITS AFFILIATES IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE LESSER OF THE AMOUNT PAID BY YOU TO US PURSUANT TO THE AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR US $50,000 (OR ITS EQUIVALENT). IN NO EVENT WILL CONTENTNET OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. YOU WILL NOT HOLD CONTENTNET RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
12. TERMINATION. At any time, for any or no reason, you or we may terminate the Agreement and/or your participation in any Program, and we may suspend or limit your participation in any Program or part thereof, including removing your ads. ContentNet will not have any liability regarding the foregoing decisions. Upon termination of any Program Terms or the suspension or discontinuation of any Program or your participation therein, your outstanding payment obligations incurred under such Program will become immediately due and payable. Sections 2, 3 (second, fourth, and fifth sentences only), 4(iii), and 5 through 15 of these Advertiser Terms and Conditions, the defined terms of the Agreement, and those provisions specified in any Program Terms will survive termination of the Agreement.
13. NOTICES. We may give notices to you by posting on any ContentNet. Website, or by email to the address provided by you. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, ContentNet, 92 East Main St, Suite 204, Somerville, NJ 08876.
14. CHOICE OF LAW; VENUE. The terms of the Agreement and any dispute relating thereto or between you and us will be governed by the laws of the State of New Jersey, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Somerset County, New Jersey, or another location designated by us. Any claim against us will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
16. REPRESENTATIVE. If you are an advertising agency, search engine marketer, reseller, or other entity representing Advertisers (a "Representative" ), this Section applies, and in such case, "you" and "your" mean Representative, any Affiliates of Representative who execute an Insertion Order, together with Advertisers. "Advertiser" means an entity (including a sole proprietor) which is/will be enrolled in a Program by you.
a. Representative represents, warrants, and covenants that: (i) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts, (ii) by Representative executing an Insertion Order or otherwise enrolling an Advertiser in a Program, the Advertiser is also entering into the Agreement, (iii) Representative will not, without our prior written consent: (a) make any representation, guarantee, condition, or warranty concerning any Program or ContentNet, including that Representative is an affiliate or partner of a ContentNet, (b) make any commitments (e.g., guarantees as to placement of ads) to an Advertiser or potential Advertiser regarding any Program, (c) negotiate any terms or conditions related to the Programs which may affect the rights, protections, and/or obligations of ContentNet, and/or that are inconsistent with the Agreement, or (d) engage in any telesales or telemarketing in connection with any Program, and (iv) Representative will perform its duties pursuant to the Agreement in a professional manner consistent with the requirements established by us. Upon our request, Representative will immediately deliver to us each agreement that designates Representative as the Advertiser’s agent and authorizes Representative to act on the Advertiser’s behalf in connection with the Agreement. In the event of a termination of your relationship with an Advertiser, such Advertiser may continue to use the Information, including account and performance history with respect to its ads, and Representative will no longer have access for such Advertiser’s accounts. Representative will not at any time use data or information received in connection with the Agreement to conduct any marketing efforts targeted at our existing advertisers. While the Agreement is effective and for twelve (12) months thereafter, Representative will not, directly or indirectly, recruit, solicit or induce any personnel, consultant or advisor of ContentNet to terminate his or her relationship with ContentNet.
b. Payment Liability. Without limiting any other provision of the Agreement, Representative and each Advertiser will be jointly and severally liable for all payment obligations pursuant to Section 2 of these Advertiser Terms and Conditions, and you hereby waive any Law that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable. Notwithstanding the foregoing, (i) if we offer you Sequential Liability in a particular country and we approve the applicable Advertiser’s credit application, we will hold Representative liable for payments under Section 2, above, solely to the extent Representative has received payment from such Advertiser; for sums not received by Representative, we will hold the Advertiser solely liable ( "Sequential Liability" ), and (ii) if Representative (x) breaches or allegedly breaches Section 16a.(i), above, or (y) fails to comply with our request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments pursuant to Section 2, above, Representative will be obligated to immediately pay all such amounts due us regardless of whether it has received payment from such Advertiser. You acknowledge that we may directly contact any Advertiser represented by Representative, including if we have not received payment for such Advertiser’s account within 60 days from the date of the applicable invoice.
17. ELECTRONIC SIGNATURES EFFECTIVE.
a. If the Agreement is an electronic contract, then this Section applies in order to set out the legally binding terms of your use of our Programs, including the ContentNet Websites. You accept the Agreement and the terms, conditions, and notices contained or referenced herein by clicking on the "I Accept" button in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. When you click on the "I Accept" button during enrollment, you also consent to having the Agreement provided to you in electronic form.
b. You have the right to receive the Agreement in non-electronic form and may request a non-electronic copy of the Agreement before or after you electronically sign the Agreement by submitting a request to us as specified below. You also have the right, at any time, to withdraw your consent to have the Agreement provided to you in electronic form. Should you choose to withdraw your consent to have the Agreement provided to you in electronic form, we will discontinue your then-current username and password. This means that you will not have the right to use any Program unless and until we issue you a new username and password. We will only issue you a new username and password after we receive a signed copy of a non-electronic version of the Agreement, which we will send to you upon written request. To withdraw your consent and/or request a non-electronic copy of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth in Section 13, above. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. Prior to such effective date, the Agreement electronically signed by and provided to you will remain legally valid and enforceable.
PAYMENT METHOD PROGRAM TERMS - If you participate in the Payment Method Program (as defined below), the following Program Terms apply:
1. BILLING AND PAYMENT METHOD. When you supply us with a method of payment such as a credit card, charge card, or bank account ( "Payment Method" ) in connection with a Program, you participate in the "Payment Method Program" and you authorize us to bill your Payment Method pursuant to these Payment Method Program Terms for any and all charges and fees you incur in connection with that Program, including recurring payments. The types of Payment Methods that we accept and the timing of the billing of the charges and fees may vary according to the Program; however, we do not knowingly accept debit cards and you should not provide a debit card as a form of payment. The terms of your Payment Method are determined by an agreement(s) between you and your financial institution.
2. AUTHORIZATION. You agree to keep your Payment Method information on file with us current (such as your address, card or account number, and expiration date, if any), and you also authorize us to update your Payment Method information with data we obtain from your financial institution, the issuer of your credit card or charge card, or from MasterCard or Visa. You authorize us to retain your Payment Method information until such time as you revoke this authorization in accordance with procedures prescribed by us. Any revocation by you of this authorization will become effective: (a) if your Payment Method is a credit or charge card, when all charges and fees associated with your use of the Programs have been fully satisfied, as determined by us; or (b) if your Payment Method is a bank account, after three (3) business days. Your revocation of this authorization will have no effect on your liability for charges and fees that you have incurred in connection with your use of a Program prior to such revocation.
3. EFFECT OF TERMINATION. Sections 2 (third and fourth sentences) and 3 of these Payment Method Program Terms will survive any termination of the Agreement.
PAYMENT PLAN PROGRAM TERMS - If you participate in the Payment Plan Program, the following Program Terms apply.
1. PAYMENT METHODS. If you use a Payment Plan, you authorize us to bill your Payment Method for all charges and fees in connection with each Program as specified by the Payment Plan you select (" Payment Plan Program "). Unless and until you or we discontinue your enrollment in a payment plan (" Payment Plan "), your preauthorization for billing your Payment Method is valid until the termination of the Agreement or the discontinuation of the Payment Plan by us or your participation therein. We will send a notification to the e-mail address associated with your Program account(s) after each preauthorized transaction to notify you that your account(s) has been replenished and your charges and fees have been paid. Such payments should appear on the periodic statement sent to you by the provider of your Payment Method. We reserve the right to modify, suspend, or terminate your right to prepay, any Payment Plan, and/or your participation therein at any time. If we modify a Payment Plan, we will send you reasonable notice thereof. If you do not consent to such modified terms, you may elect to discontinue your enrollment in a Payment Plan at any time by providing written notice to us before the effective date of such modified terms. Your non-termination or continued use of a Program reaffirms that we are authorized to bill your Payment Method automatically and constitutes your acceptance of the terms of any such modified terms. In connection with a Payment Plan, you agree that if your charges equal or exceed your payment, then your ads may be removed from the Distribution Network and you will incur a debit balance for the amount of any unpaid charges incurred under your account(s), including any amounts accrued prior to the time your ads are actually removed. Charges will be posted to your account and must be paid before any of your ads will be made available through the Distribution Network.
2. TYPES OF PAYMENT PLANS. "Continuous Traffic Payment Plan": Under the Continuous Traffic Payment Plan, you preauthorize us to periodically bill your Payment Method on a recurring basis for the amount you specify. Your Payment Method will automatically be billed with the preauthorized amount whenever your account has fewer than approximately the prior three (3) days’ worth of charges remaining, as determined by us. The preauthorized amount then will be credited to your account and, after any debit balance that you may have incurred for charges in excess of the amount you have preauthorized is first deducted, the balance will be available to pay for future charges and fees; thus, while the amount charged to your Payment Method will remain the same throughout the term of your participation in the Continuous Traffic Payment Plan, the amount actually available in your account to pay for future charges and fees will vary depending upon the charges and fees you have incurred. " Fixed Budget Payment Plan ": Under the Fixed Budget Payment Plan, you determine a monthly amount for charges to your Program account(s) and you preauthorize us to bill your Payment Method each month in the amount specified. Notwithstanding the monthly amount you specify, if you exceed your available balance in any month, you will incur a debit balance; this debit balance will be deducted from the amount next billed to your Payment Method and the remaining balance will be credited to your account to pay for future charges. "Pre Payment Plan": Under the Pre Payment Plan, you determine the amount to deposit into your Advertiser Account either by using a major credit card, PayPal, check or wire. All funds deposited will be credited to your account and reflected in your balance. If your account has a negative balance, any funds added will first be applied to the negative balance, the remaining funds will be displayed as positive balance. When funds are depleted any ads that are active in your account will stop running and will have a status of "Deactivated low funds". Your ads will remain at that status until additional funds are added under the "Pre Payment Plan"
3. OVERDRAFTS AND SPEND CAP LIMITATIONS. As a function of the ContentNet Advertising Program, you have access to spend cap functionality that allows you to control daily, monthly and yearly spend cap for individual ads, groups of ads or entire Advertiser accounts and within specified flight dates and/or dayparting. You understand that the spend cap functions may run over budget depending on many factors, including, but not limited to, the volume and pacing of your ad campaign. Your use of these tools means that you agree to and understand you are liable for any spend that occurs above and beyond your desired settings up to 10% above your spend cap.
4. EFFECT OF TERMINATION. None of the terms and conditions of these Payment Plan Program Terms will survive the termination of these Payment Plan Program Terms or the applicable Program Terms.