ClickWerx Advertiser Agreement
IMPORTANT:
Only Advertisers offering products and services that are relevant are accepted to join our Advertiser network. To be relevant, an Advertiser must have a service or product that falls into one of the following categories: 1) consumer debt, 2) student loans, 3) loan refinance or consolidation, 4) personal finance, 5) education, 6) small business resources, 7) student resources, 8) credit, 9) education 10) Travel. Not all Advertisers that meet these relevancy requirements will be approved for inclusion in our network. Acceptance into the ClickWerx affiliate networks shall be determined at ClickWerx’s sole discretion and ClickWerx’s decision shall be final.
BEFORE REGISTERING TO BECOME A CLICKWERX ADVERTISER, PLEASE MAKE SURE YOU READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE CLICKWERX ADVERTISER AGREEMENT AND THE ADVERTISER FAQ. BY COMPLETING THE CLICKWERX ADVERTISER REGISTRATION PROCESS OR OTHERWISE ENROLLING IN THE CLICKWERX ADVERTISER PROGRAM, YOU ARE INDICATING THAT YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THE CLICKWERX ADVERTISER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT ENROLL OR PARTICIPATE IN THE CLICKWERX ADVERTISER PROGRAM.
Last updated: March 01, 2015
This Advertisers Agreement (this “Agreement”) is, by, and between LeadWerx, Inc., a Utah corporation which owns and operates the ClickWerx System ("ClickWerx") and You ("Advertiser").
WHEREAS, ClickWerx operates the ClickWerx program, which (1) sells Internet advertising according to various marketing programs, including without limitation, ClickWerx’s bid program (the “Bid Program”), and (2) distributes Pay per Click Advertisements (defined below) in part through third-party websites owned by certain of ClickWerx’s customers (such customers are referred to herein as “Affiliates”); and
WHEREAS, Advertiser desires to purchase PPC advertising and engage certain of the ClickWerx Internet advertising services provided by ClickWerx.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) “Advertiser” refers to a buyer of PPC Advertising (defined below) on the ClickWerx advertising platform.
(b) “Affiliate Profit Sharing Program” refers to a proprietary business model that allows Affiliates to share in the revenue generated from Advertisers.
(c) “Affiliate Website” refers to a website owned or operated by Affiliate that is designated by Affiliate and approved by ClickWerx to be used in part to (i) host Display Advertisement(s) that refer Visitors to the applicable Advertiser website(s) or (ii) to display third-party advertisements, hyperlinks or text links provided by ClickWerx.
(d) “ClickWerx.net” refers to the website where Affiliates and Advertisers alike will access the management of their PPC Advertising or Affiliate Profit Sharing Program accounts through a password protected secured server.
(e) “ClickWerx Sites” refers to any websites that ClickWerx owns and operates pertaining to one or more particular Product Type(s) (as defined below). In this Agreement, where the term “applicable ClickWerx Site” appears, it means the specific ClickWerx Site to which the Affiliate Website sends Visitor traffic.
(f) “Display Advertisement(s)” refers to marketing collateral, creatives and/or any other advertising materials, Advertiser places onto ClickWerx System for presentation to Visitors.
(g) “Integrated Ad Listing” refers to the placement of PPC Advertising on the Affiliate Website through the use of code generated by the System (defined below) and only as provided by ClickWerx to the Affiliate.
(h) “Invalid Clicks” refers to clicks (a) generated via automated crawler, robots or click-generating scripts or other software, (b) that occur as a result of auto-spawning of browsers, automated redirects, or clicks that are required for users to navigate, (c) that occur as a result of any incentive such as cash, credits, gifts, giveaways or loyalty points, (d) generated as a result of conduct intended to artificially increase or inflate the number of clicks generated that are related to this Agreement, (e) that occur in connection with testing by or on behalf of ClickWerx, Affiliate or any other entity, (f) that occur in a manner not permitted (or not compensable to ClickWerx) under the terms of ClickWerx’s PPC Advertising agreement with its Advertisers, or (g) that are otherwise invalid or fraudulent or which do not constitute Valid Clicks (defined below), as determined in ClickWerx’s reasonable discretion. For the avoidance of doubt, Invalid Clicks will not be included in any revenue share calculation.
(i) “Pay per Click Advertisement(s)” or “PPC Advertising” shall mean advertisements for which ClickWerx charges the Advertiser an amount equal to the pay-per-click bid amount for each Valid Click; and such other performance based advertising products as ClickWerx may include in its Bid Program from time to time, and elect to provide to Affiliate hereunder.
(j) “PPC Net Revenue” means the revenue actually received by ClickWerx attributable to PPC Advertisements hosted or displayed on the Affiliate Website and/or the applicable ClickWerx Site. “PPC Net Revenue” specifically excludes amounts attributable to third-party sales commissions, taxes, refunds, bad debts, chargebacks, credit card charges, fraud (including click fraud), third-party ad agency fees or commissions, and substantially similar third-party charges or credits.
(k) “Product Type” refers to the various products or services for which Advertisers elect to advertise, including but not limited to the following categories: (i) student loan document preparation products and any other type of student loan product or category supported by ClickWerx; and (ii) financial products and services such as credit counseling or debt consolidation or consumer finance-related products or services including loan consolidation or financial services, and credit cards, deposit accounts and other consumer-focused financial products or services.
(l) “System” refers to the proprietary technology and process developed by ClickWerx to serve PPC Advertising on Affiliate Websites, which include providing codes, tracking clicks, blocking fraudulent clicks, providing reporting and calculating PPC Net Revenue.
(m) “Valid Click” means a Visitor’s click-through of a PPC Advertisement on the Affiliate Website or the applicable ClickWerx Site in accordance with the terms and conditions of this Agreement, to the express exclusion of any and all Invalid Clicks.
(n) “Visitor” refers to any third-party who visits an Affiliate Website.
(o) “Written Approval” refers to any approval granted to Advertiser by ClickWerx and sent by email, fax or letter from any staff of ClickWerx and produced from a ClickWerx or ClickWerx email address, fax cover letter or letterhead.
I. AGREEMENT
The ClickWerx System, owned and operated by LeadWerx, Inc. is provided to you the Adverstiser under the Terms and Conditions of this ClickWerx Service Agreement ("Terms"), and any amendments thereto and any operating rules or policies. ClickWerx reserves the right, in its sole discretion, to change, modify, add or remove all or part of the ClickWerx Service Agreement at any time. If any modification to this agreement is unacceptable to you, your only recourse will be to terminate this agreement. Your continued participation with ClickWerx following our posting of a new agreement on our site will constitute a binding acceptance of the change.
1.1 By accepting the Terms and Conditions of the ClickWerx Service Agreement, the Advertiser
(a) represents and warrants that s/he is of at least 18 years of age
(b) agrees to provide accurate, current and complete information about Advertiser as prompted by the Account Registration Form; and
(c) agrees to maintain and update this information to keep it accurate, current and complete.
If any information provided by Advertiser is inaccurate, not current or incomplete, ClickWerx has the right to terminate Advertiser's account and refuse any and all current or future use of the ClickWerx Service.
1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS, AND CLICKING THE "CREATE ACCOUNT" BUTTON, YOU AGREE TO BE BOUND BY THE CLICKWERX SERVICE AGREEMENT. If these Terms and Conditions or any future changes are unacceptable to you, you may cancel your account pursuant to Section VI (6.0) regarding Termination of Service.
II. DESCRIPTION OF CLICKWERX SERVICE:
By completing Registration, Advertiser creates an account with ClickWerx. Advertiser accounts gives the ClickWerx Advertiser the ability to purchase display advertising, on a Pay Per Click basis, which appears on ClickWerx Sites or Affiliate Websites.
2.1 Editorial Review - ClickWerx will review each Display Advertisement Advertiser proposes to use in its PPC Advertising on System. Each Display Advertisement will be reviewed individually, and ClickWerx has the right to reject the Advertiser's Display Advertisement for any reason. Upon passing the editorial review, the Display Advertisement will be allowed for presentation to Visitors.
2.2 Technical Support - Advertisers may receive technical help and resolve billing inquiries by contacting ClickWerx Technical Support at (888) 662-5621 x708, or by emailing support@clickwerx.net.
2.3 Neither this ClickWerx Advertiser Agreement, nor any documentation furnished under it is intended to express or imply any warranty that the System will be uninterrupted, timely or error-free. CLICKWERX'S LIABILITY TO ADVERTISER SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY ADVERTISER TO CLICKWERX OVER THE COURSE OF THE EXISTING TERM.
2.4 USE OF CLICKWERX SUBMISSIONS - By submitting Display Advertisements or other materials to ClickWerx (including information regarding the listing) you are irrevocably granting ClickWerx, its licensees, and any entities in the ClickWerx Network, the right to use all parts of the material without limitation including, but not limited to, modifying it or using it commercially and authorizing others to do so. ClickWerx reserves the right to edit, refuse, reject or remove any Display Advertisements at its discretion at any time from the System.
III. ADVERTISER REPRESENTATIONS:
Advertiser affirms that he is the legal owner of the URL specified in his Advertiser account, an employee of the legal owner of the domain, or has obtained express written permission from the legal owner of the domain for use of ClickWerx's with the aforementioned domain. Advertiser expressly agrees to indemnify ClickWerx from any claims by any third party arising from use of the Display Advertisement or URL specified by Advertiser.
IV. FUNDING POLICY:
4.1 ClickWerx Advertiser accounts feature an Auto-Renewal or "re-bill" feature, which is designed to ensure continuity of service. Auto-Renewal automatically funds Advertiser’s account from Advertiser’s credit card when Advertiser funds go below $25 or any other amount defined by ClickWerx. Any Advertiser utilizing ClickWerx irrevocably grants their express permission for ClickWerx to re-bill their credit card at the ClickWerx defined "re-bill" interval. ClickWerx reserves the right to change payment dates, amounts, and service(s) at any time, with or without prior notification to Advertiser, which may be posted on the ClickWerx.net website, in Advertiser’s account, or emailed to Advertiser.
4.2 Any unused funds deposited by Advertiser are fully refundable, at any time, upon written request by Advertiser to ClickWerx.
4.3 Any amount(s) paid for PPC Advertising, by Advertiser, that yields Valid Clicks of Advertiser’s Display Advertisements is nonrefundable. ClickWerx makes no claims whatsoever regarding the performance of System and is not obligated in any way to refund monies paid by Advertiser for Valid Clicks.
4.3 MINIMUM DEPOSIT: Advertisers must deposit a minimum of $300.00 in their ClickWerx account in order to initiate PPC Advertising on System. All funds maintained in Advertiser account will be distributed equally among currently active ad campaigns to ensure continuity of service. ClickWerx reserves the right to reject any deposit at any time if fraud is suspected.
4.4 MINIMUM COST PER CLICK: ClickWerx, at its discretion, may establish a minimum cost per click required to purchase PPC Advertising. ClickWerx reserves the right to change the minimum Cost per click, without advance notice to Advertiser at any time.
4.5 AUTHORITY IN BILLING DISPUTES: ClickWerx in its sole discretion will determine which clicks constitute Valid Clicks.
V. CLICK FRAUD: All ClickWerx campaigns are closely monitored for fraudulent activity by Publishers. Publisher accounts believed to be responsible for fraudulent clicks will be automatically restricted from use of their Publisher accounts, and investigated for click fraud. Any revenue believed to be generated by fraudulent clicks will be refunded to the Advertiser in good faith. CLICKING ON YOUR OWN DISPLAY ADVERTISEMENTS COUNTS AS CLICK FRAUD AND WILL RESULT IN AUTOMATIC TERMINATION. ClickWerx reserves the right to reject any or all requests for investigation of assumed click fraud by any Advertiser at their discretion.
VI. TERMINATION: ClickWerx may terminate the ClickWerx Advertiser Agreement with or without cause at any time, effective immediately and without prior notice. ClickWerx may terminate an Advertiser via written or email notice as necessary. Request of Termination initiated by Advertiser must be requested via email. ClickWerx shall not be liable to Advertiser or any third party for Termination of Service.
Should Advertiser object to any Terms and Conditions of the ClickWerx Service Agreement or any subsequent modifications hereto, or become dissatisfied with the Service in any way, the ClickWerx Advertiser's sole recourse is to immediately
(a) open a Support Ticket, or
(b) contact ClickWerx directly; or
(c) request termination of ClickWerx account.
Upon termination of the ClickWerx Service, Advertiser's right to use System instantly ceases. Advertiser shall have no right, and ClickWerx shall have no obligation thereafter, to forward any information associated with Advertiser's account.
6.1 ClickWerx Service may terminate Advertiser without any prior notice if Advertiser has materially breached or is otherwise not in compliance with any provision of the ClickWerx Service Agreement, and such breach or noncompliance is not cured within such thirty (30) day period. ClickWerx reserves the right to immediately suspend or terminate any Advertiser, website, and/or restrict Advertiser's access to the ClickWerx service until any breach or noncompliance is cured.
6.2 TERMINATION FOR ILLEGAL OR OTHER ACTIVITY: ClickWerx may, but has no duty to, immediately terminate Advertiser and remove it from ClickWerx servers if in its sole discretion ClickWerx concludes that Advertiser is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of ClickWerx or others. Any termination under this Section shall take effect immediately, and Advertiser expressly agrees that it shall not have any opportunity to cure.
6.3 WAIVER: By opening an ClickWerx account, Advertiser expressly waives any statutory or other legal protection in conflict with the provisions of this Section 6.
6.4 DELETION OF INFORMATION: Upon termination, ClickWerx reserves the right to delete from its servers any and all information contained in Advertiser's account including, but not limited to, order processing information, mailing lists, and any data generated by the Service software.
6.5 The provisions of Section 7.0 (VII. EXCLUSION OF WARRANTIES), to Section 13.0 (XIII: GENERAL LEGAL TERMS) of this ClickWerx Service Agreement shall survive any termination of the Agreement.
VII. WARRANTIES
7.1 No Warranties. The SYSTEM and technologies provided to Advertisers by ClickWerx and the System are deemed “as is” and ClickWerx makes no warranty, express or implied, including without limitation with respect to the operation of the System, links, and other services. The Advertiser represents and warrants that it has agreed to purchase PPC Advertising from ClickWerx solely on its own accord and has not been influenced by implied warranties, marketing materials or from communications with any ClickWerx representative. IN PARTICULAR, CLICKWERX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SYSTEM WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SYSTEM WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SYSTEM WILL BE CORRECTED.
7.2 Loss or Damages. ClickWerx shall not be liable to Advertiser for any damages or losses suffered by Advertiser, including lost profits that are caused by the System being unable to connect to any Advertiser Website. The System may occasionally suffer interruptions and ClickWerx does not guarantee that the System will be functional at all times. ClickWerx will not be liable for any losses incurred by Advertiser during this “down time”, including the loss of any data. Furthermore, ClickWerx shall not be liable for Advertiser mistakes, incorrect use, negligent use, or erroneous use of System.
7.3 Advertiser Indemnification. Advertiser will defend, indemnify, and hold harmless ClickWerx from and against any and all Damages (i) due to any claim by a third party relating to or arising from any breach or violation by Advertiser of its representations or warranties under this Agreement, (ii) due to any claim by a third party of infringement of any patent, trademark, copyright, or other intellectual property right of any third party by any information or materials provided by Advertiser for use by ClickWerx, or (iii) relating to the development, operation, maintenance or contents of Advertiser.
7.4 Limitations. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COLLECTIVE LIABILITY OF CLICKWERX AND ITS THIRD PARTY VENDORS UNDER THIS AGREEMENT WILL NOT EXCEED $5,000. CLICKWERX SHALL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 No Endorsement. Advertiser hereby acknowledges that the implementation of this Agreement does not constitute an express or implied endorsement by ClickWerx of Advertiser or of any product or SYSTEM offered by Advertiser.
7.6 Legal Capacity and Third Party Rights. Each party warrants that each has the legal right and capacity to enter into this Agreement and that entering into this Agreement does not violate the rights of any third party. Affiliate further represents and warrants that the execution or performance of this Agreement by Affiliate neither conflicts with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound, nor violates any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. Affiliate agrees to hold ClickWerx harmless for any claims made by third parties that relate to the Affiliate’s execution or performance of this Agreement.
7.7 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SYSTEM 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.
7.8 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CLICKWERX OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
7.9 CLICKWERX FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
VIII. LIMITATION OF LIABILITY
7.10 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 7.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLICKWERX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(2) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(A) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SYSTEM;
(B) ANY CHANGES WHICH CLICKWERX MAY MAKE TO THE SYSTEM, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SYSTEM (OR ANY FEATURES WITHIN THE SYSTEM);
(C) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SYSTEM;
(D) YOUR FAILURE TO PROVIDE CLICKWERX WITH ACCURATE ACCOUNT INFORMATION;
(E) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
7.11 THE LIMITATIONS ON CLICKWERX?S LIABILITY TO YOU IN PARAGRAPH 8.1 ABOVE SHALL APPLY WHETHER OR NOT CLICKWERX HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
IX. INTELLECTUAL PROPERTY:
9.1 It is the policy of ClickWerx to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminating the accounts of repeat infringers.
9.2 ClickWerx owns and will retain all of its rights in its intellectual property associated with the System, Affiliate Profit Sharing Program and Bid Program, which includes without limitation, programming codes, ClickWerx, the ClickWerx Sites and ClickWerx.net website content, business practices, documents, trade names, trademarks, and all other intellectual property rights. Advertiser agrees to not reverse engineer, recreate, reproduce, or otherwise copy ClickWerx intellectual property in any way. Advertiser agrees and acknowledges that no right, interest, title or license in or to any of the intellectual property of ClickWerx or any of its Affiliates will be conveyed to Advertiser. Advertiser may not duplicate the content of any website owned or operated by ClickWerx or any of its Affiliates. Advertiser represents and warrants that it will not infringe the intellectual property rights of ClickWerx or any ClickWerx Affiliate.
9.3 Non-Disclosure. Advertiser agrees that the System, including information related to the Affiliate Profit Sharing Program and Bid Program, contains proprietary information and may include trade secrets that ClickWerx wishes to remain confidential. Advertiser agrees not to disclose to any third party any details about the System, the Affiliate Profit Sharing System or any other confidential information that has been disclosed to Advertiser, or to which the Advertiser has access in connection with the ClickWerx Advertiser Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the parties acknowledge and agree that their obligations of confidentiality with respect to proprietary or confidential Information shall continue in effect for a total period of three (3) years from the date this Agreement is terminated.
9.4 Non Circumvent. Advertiser agrees that ClickWerx maintains proprietary relationships with Affiliates which are valuable to ClickWerx in the operation of System and sales of PPC Advertising. Advertiser agrees to not directly, or indirectly, to establish a relationship in which Advertiser purchases advertising from Affiliate outside of ClickWerx. The parties agree that in the event Advertiser does establish a direct relationship with Affiliate, ClickWerx may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the parties acknowledge and agree that their obligations of non circumvention shall continue in effect for a total period of three (3) years from the date this Agreement is terminated.
9.5 Exceptions. Nothing in this Agreement will in any way restrict the right of Advertiser to use, disclose, or otherwise deal with any information that (i) was already known to Advertiser at the time of disclosure as evidenced by written documents in Advertiser’s possession prior to disclosure; or (ii) was generally available to the public or becomes publicly known through no wrongful act of Advertiser; or (iii) was received by Advertiser from a third party who had a legal right to provide it; or (iv) was developed independently of knowledge of confidential information received by Advertiser from ClickWerx.
X. ADVERTISEMENTS:
10.1 Some of the SYSTEM are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the SYSTEM, queries made through the SYSTEM or other information.
10.2 The manner, mode and extent of advertising by ClickWerx on the SYSTEM are subject to change without specific notice to Advertiser.
10.3 In consideration for ClickWerx granting you access to and use of the SYSTEM, you agree that ClickWerx may place such advertising on the SYSTEM.
XI. OTHER CONTENT:
11.1 The SYSTEM may include hyperlinks to other websites or content or resources. ClickWerx may have no control over any websites or resources which are provided by companies or persons other than ClickWerx.
11.2 You acknowledge and agree that ClickWerx 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 websites or resources.
11.3 You acknowledge and agree that ClickWerx 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 websites or resources.
XII. CHANGES TO THE TERMS:
12.1 ClickWerx may make changes to the ClickWerx Service Agreement at any time. When these changes are made, ClickWerx will make them available to you from within, or through, the affected SYSTEM.
12.2 You understand and agree that if you use the ClickWerx SYSTEM after the date on which the ClickWerx Service Agreement has changed, ClickWerx will treat your use as acceptance of the updated ClickWerx Service Agreement.
XIII. GENERAL LEGAL TERMS:
13.1 Sometimes when you use the SYSTEM, you may (as a result of, or through your use of the SYSTEM) 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 SYSTEM, software or goods may be subject to separate terms between you and the company or person concerned. If so, the ClickWerx Service Agreement does not affect your legal relationship with these other companies or individuals.
13.2 The ClickWerx Service Agreement constitutes the whole legal agreement between you and ClickWerx and governs your use of the SYSTEM (however excluding any SYSTEM which ClickWerx may provide to you under a separate written agreement), and completely replace any prior agreements between you and ClickWerx in relation to the SYSTEM.
13.3 You agree that ClickWerx may provide you with notices, including those regarding changes to the ClickWerx Service Agreement, by email, regular mail, or postings on the SYSTEM.
13.4 You agree that if ClickWerx does not exercise or enforce any legal right or remedy which is contained in the ClickWerx Service Agreement (or which ClickWerx has the benefit of under any applicable law), this will not be taken to be a formal waiver of ClickWerx’s rights and that those rights or remedies will still be available to ClickWerx.
13.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the ClickWerx Service Agreement is invalid, then that provision will be removed from the ClickWerx Service Agreement without affecting the rest of the Terms. The remaining provisions of the ClickWerx Service Agreement will continue to be valid and enforceable.
13.6 The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against any party, and any rule that ambiguities shall be construed against the drafter of a document shall not be applicable with respect to this Agreement.
13.7 This Agreement shall be governed by the laws of the State of Utah, without reference to conflict of laws principles. The United Nations Convention on the Sale of Goods does not apply to this Agreement. In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association. The mediation shall be held in Summit County, Utah. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The place of arbitration will be Summit County, Utah. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Utah. If for any reason any provision or portion of this Agreement is found to be unenforceable, that provision or portion of the Agreement will be enforced to the maximum extent possible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
13.8 Failure of either party to insist on strict performance of any of the terms and conditions herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions hereof.
13.9 You agree and represent that you are duly authorized to sign this Agreement on behalf of your company and to bind it to the terms of this Agreement.
13.10 In the event that either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies or communications line failure not the fault of the affected party (hereinafter referred to as a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its commercially reasonable efforts to resume performance. Failure to meet due dates or response intervals resulting from a Force Majeure Event shall extend the due dates or response interval for a reasonable period.
13.11 Any reasonable costs incurred by either party to obtain legal counsel to enforce the terms of this Agreement may be expended upon the other party that is found in violation of Agreement.
13.12 The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party.
13.13 Neither party is responsible for the failures of performance of the other party that are due to causes beyond their control, including accidents, acts of God, failure by telecommunications providers, internet service providers and other regulatory entities.
(j) Advertiser may not transfer or assign this Agreement, in whole or in part, without the written consent of ClickWerx. Any attempt by Advertiser to transfer or assign this Agreement without consent will be null and void.