Terms of Service
Posted: March 21, 2012
Effective: April 2, 2012
These Terms of Service govern your use of the DomainSponsor®® program (the “Program”) which is owned and operated by Oversee.net (“Program Manager”, “we” or “our”). By participating in or using the Program, you (“you,” “your,” or “Publisher”) agree to be bound by these terms of service (“Terms of Service”).
Definitions. As used herein, the following capitalized terms shall have the following meanings:
“Click” means a valid click by an End User of a Publisher Site on a search link, advertisement or other promotional link created by the Program and displayed on a Publisher Site. “Clicks” do not include clicks (a) which are determined to be invalid by virtue of Program Manager’s internal tracking system and traffic quality scoring process, (b) for which Program Manager does not receive revenue from its advertising partners, (c) generated by automated crawlers, robots or click generating scripts, or a person with no intent to sign-up, purchase or otherwise act upon a product or service offering; (d) which are part of a series of clicks on the same advertisement within a brief period of time, or (e) which are rejected by an advertising partner of Program Manager for a valid business purpose.
“End User” means a human internet user with the intent to purchase, sign up or otherwise act upon a product or service linked to on a Landing Page or Search Results Page. An “End User” excludes any person or any mechanical, artificial or fraudulent means (such as a robot, spider, software or scraper).
“Landing Page” means an html page or a framed html page generated by the Program and displaying search links, search results and/or other content from servers designated by Program Manager.
“Publisher Site” means a website associated with a domain name owned by a Publisher which is submitted by Publisher for use in the Program.
“Revenue” means estimated gross revenue to be received by Program Manager from its upstream advertising partners for a Click as adjusted per Program Manager’s traffic quality scoring process; provided, however, that such amounts may be further adjusted by Program Manager in its sole discretion to take into account any violations of these Terms of Service by Publisher. Program Manager may also exclude from the calculation of Revenue any Clicks that originate from countries where traffic is suspect or difficult to track, or from sources which are determined to be invalid on a consistent and regular basis by Program Manager or its upstream advertising partners.
“Search Results Page” means an html page hosted by or on behalf of Program Manager displaying search results pulled from Program Manager servers (or such other servers as Program Manager elects to use) which results from a typed in search or keyword click from a Landing Page.
Payment. Unless otherwise agreed upon in writing by Publisher and Program Manager, Publisher will be paid a commission equal to 50% of the Revenue generated by each Click. Commissions will be paid to Publisher in U.S. Dollars as promptly as practicable following the end of the calendar month in which such commissions were earned; provided, however, that in certain circumstances payments may be delayed for up to ninety (90) days following the end of such calendar month. In the event that the commissions payable for a particular calendar month are less than $50, then such payments shall be accrued until the next payment cycle in which such accrued commissions exceed $50. No changes may be made to the foregoing payment provisions (including commission adjustments, terms of payment, or payment dates) unless agreed upon in writing by Program Manager and Publisher.
Factors Affecting Payment. Publisher acknowledges and agrees that Program Manager’s obligation to make commission payments is premised on the understanding that Program Manager will be able to monetize the clicks generated by Publisher Sites (“Traffic”) through its upstream advertising partners and that such partners require that payment be made only for appropriate, reasonable, approved and legitimate Traffic. As such, Publisher acknowledges and agrees that all Traffic will be subject to review by Program Manager’s proprietary and confidential traffic quality process. If Program Manager is unable to collect revenues or believes it may not be able to collect revenues from its advertising partners for Traffic for any reason, or if Publisher breaches these Terms of Service, or if there are quality problems with the Traffic, then any commissions that otherwise would have been payable to Publisher hereunder shall be reduced or eliminated accordingly. If Program Manager has already paid Publisher commissions on Traffic which is later deemed to be of insufficient quality, or if Program Manager’s advertising partners refuse to pay Program Manager for such Traffic, then Program Manager will, at its discretion, either deduct such amounts from any future commissions that otherwise would have been payable to Publisher, or require Publisher to immediately reimburse Program Manager for any such commission payments. Further, Publisher agrees that Program Manager may withhold payments for Traffic (i) while it is being reviewed per the traffic quality process or (ii) if Program Manager reasonably believes that it will not receive payment for such Traffic from its upstream advertising partners.
Taxes and Withholding. Publisher understands and agrees that taxes with respect to commissions or any other payments made by Program Manager to Publisher hereunder will not be withheld or paid directly or indirectly by Program Manager unless Program Manager determines in its sole discretion that Program Manager may be liable for withholding on such payments, in which case it shall withhold the estimated amount and notify Publisher of such withholding. Publisher understands and agrees that it is solely responsible for paying all local, state, federal, and/or foreign taxes on commissions and other income received by Publisher under the Program. Publisher must provide Program Manager with a valid and accurate signed IRS Form W-9, or a Foreign Person Statement, in a form acceptable to Program Manager, before Program Manager will make any payments to Publisher. Program Manager reserves the right to withhold payment until the accuracy of the address and contact information on these forms is confirmed.
Payment Disputes. Publisher must submit to Program Manager any dispute regarding any payment made by Program Manager hereunder, or any calculation related thereto, within fifteen (15) days of the date of such payment and all such disputes must be submitted by e-mail to DSSupport@domainsponsor.com. Failure to do so will constitute an acceptance of, and agreement with, the calculation of the payment.
Program Manager reserves the right to terminate Publisher’s participation in the Program at any time and in its absolute and sole discretion. Upon termination, Program Manager at its sole discretion may remit any outstanding commission payments.
Publisher and the Publisher Sites must comply with all applicable laws and regulations including, but not limited to, the CAN SPAM Act.
Publisher must own the Publisher Sites that it wishes to use with the Program.
Publisher may not beg, ask, entice, or incentivize End Users into clicking on links, or mislead End Users into believing that they will receive anything, other than internet search results, by clicking on a text link or search box or otherwise encourage End Users or other persons, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, in the judgment of Program Manager.
Program Manager reserves the right to terminate your account if it is idle for more than a month.
Publisher may not direct or redirect domains to Program Manager’s servers in any manner which has not been previously approved in writing by Program Manager. As such, Program Manager reserves any and all rights to direct the method by which Publisher directs or redirects its domains to the Program Manager’s servers, whether through DNS, redirect code or otherwise.
Publisher shall not: (a) edit, modify, filter, alter, truncate, rearrange, add to, or change the look, feel or content of any Landing Page or Search Results Page; (b) host the Landing Page or Search Results Pages; (c) redirect an End User away from the Search Results Page; (d) provide a version of the Search Results Page different from the page served to an End User by or as directed by Program Manager; (e) cache, capture, or store any search results or intersperse any content between the Search Results Page and destination page which would result from a Click on a link on the Search Results Page, including, without limitation, content framing (framing of landers or framing of the search results is prohibited without prior written permission by the Program Manager for all Landing Pages or Search Results Pages); (f) display any Search Results Pages or Landing Pages, or the content thereof, in part or in total, to any third parties, including, without limitation, display on any Publisher Sites or anywhere else; (g) enter into any arrangement or agreement under which any third party pays Publisher fees or shares in any revenue payments and/or royalties for any search results displayed on the Publisher Site, except as permitted in these Terms of Service; or (h) display graphical or text units in any form (including but not limited to pop-up, pop-under or exit windows, expanding buttons and animation) that block or otherwise inhibit the full and complete display to End Users of any Search Results Pages, landing Pages, and/or Web pages accessed by clicking on any part of a search result.
Search Results Pages accessed by End Users through the Program shall be served solely through servers designated by Program Manager.
No Publisher Site shall: (a) provide any interface for a Downloadable App, any marketing materials for any Downloadable App, or any hyperlinks to any of the foregoing; (b) be a downloadable or Internet accessible application, as determined by Program Manager in its sole reasonable discretion; (c) under any circumstances, be a competitor of any search engine company, as determined by Program Manager in its sole reasonable discretion; (d) place, display or use any unauthorized branding or attribution of any kind, including without limitation on any Landing Page, Search Results Page or framed in conjunction with any such pages, to indicate that any search engine is providing such results or for other promotional purposes; (e) contain any pornographic, hate-related or violent content or contain any other material, products or services that violate, or encourage conduct that would violate, any laws or any rights of any third party or otherwise give create any liability for Program Manager; or (f) include content above or below the Landing Page, unless such content is approved in writing by Program Manager.
In the event that Program Manager blocks any domain name from the Program, such domain name may not participate, either directly or indirectly, in the Program without the express written consent of Program Manager. Accordingly, neither Publisher nor anyone acting on behalf of Publisher shall redirect or attempt to redirect the domain name to the Program through use of embedded redirection or other method intended to avoid the blocking of such domain name from participation in the Program.
Domain Names & Intellectual Property Rights. No domain names which infringe on the intellectual property rights, or any other rights, of any third party may be used in connection with the Program and Publisher shall not attempt to use any such domain name in connection with the Program. In the event that Publisher submits any such domain name for use in the Program, Program Manager shall have the right to block such name, and, terminate Publisher’s participation in the Program, in addition to any other remedies available to Program Manager. Publisher shall be liable for any and all damages suffered by Program Manager as a result of Publisher’s submission of any such domain names to the Program.
Representatives and Agents. If Publisher desires to have a representative or agent manage and control their account with Program Manager, either individually or aggregated with other accounts managed by such representative or agent, Publisher’s use of such representative or agent shall be subject to the following terms: (i) such representative or agent must agree to be bound by these Terms of Service and otherwise must be in good standing with Program Manager, as detailed below, (ii) Publisher shall be deemed to have authorized such representative or agent to take any and all actions with respect to the Publisher’s account and participation of Publisher’s domain names in the Program, including without limitation, being the authorized contact for all communications to and from Program Manager and being authorized to make any and all changes with respect to Publisher’s account with Program Manager and Program Manager shall be fully entitled to rely on, and shall have no liability to Publisher with respect to, any and all requests, decisions, actions and/or omissions of such representative or agent with respect to Publisher’s account and/or domain names and (iii) Publisher’s commission payments and Publisher’s account with Program Manager may be suspended, cancelled or terminated if such representative or agent violates these Terms of Service with respect to any account or domain name participating in the Program which is under its control, even if such breach is unrelated to such Publisher’s account.
Publisher shall be liable for any actions taken by its agents and representatives with regard to Publisher’s account.
If Publisher desires to remove its representative or agent from its account, it must do so by delivering written notice to Program Manager specifically revoking the authority of such representative or agent from such Publisher’s account, such revocation not to be effective until written confirmation from Program Manager of receipt of its written request. Publisher acknowledges and agrees that in the event Publisher’s representative or agent is removed as provided herein, Program Manager may change any and all terms applicable to Publisher’s commissions, including the rate, payment thresholds and other payment terms to be consistent with other accounts, and that Publisher’s account may be subject to cancellation if Publisher does not meet minimum performance standards as an individual account.
In order for a representative to be in good standing and therefore be entitled to act on behalf of a Publisher, such representative must have their own account with Program Manager which is active and which contains domains that are owned by such representative and which domains utilize the Program. In addition, a Publisher or representative shall be in “good standing” if such Publisher (or if a representative, then such representative and each customer of the representative who would be Publishers hereunder) is not currently in violation of these Terms of Service, has not been in repeated violation of these Terms of Service, even if such past violations have been cured, and has not been subjected to excessive Revenue deductions or adjustments.
Each representative or agent that manages and/or controls accounts or domain names participating in the Program for which they are not the owner agrees to be bound by these Terms of Service for all such accounts and domain names. Each such representative or agent acknowledges and agrees that (i) a violation of these Terms of Service with respect to any one account managed or controlled by it such shall constitute a violation of these Terms of Service for all accounts managed or controlled by such representative or agent and may result in all of such accounts being suspended or terminated, (ii) in the event that Program Manager receives complaints or other communications from the owner of accounts or domain names managed by such representative or agent expressing their dissatisfaction with such representative or agent, Program Manager may, in its sole and absolute discretion, revoke such representative’s or agent’s status as a representative for accounts or domain names with Program Manager and Program Manager may work directly with such representative or agent’s clients and (iii) it shall treat all confidential information of a managed account confidential and that disclosure of such information to anyone other than Program Manager or the client shall constitute a violation of such client’s privacy and may result in Program Manager revoking such representative or agent’s status as a representative for accounts or domain names participating in the Program.
Account Access. In order to use the Program, Publisher will be required to create an account to use the web-based Program interface. Publisher is responsible for selecting and managing its password and security settings to protect its Program account and domain monetization settings (including Publisher’s contact information) from unauthorized changes. Publisher is responsible for maintaining the confidentiality and secrecy of Publisher’s password and account security settings, as well as Publisher’s other information, and Program Manager shall have no liability for any damages resulting from Publisher’s failure to protect password and account information, or activities that occur in Publisher’s account as a result of such failure.
Publisher agrees to notify Program Manager immediately of any unauthorized use of Publisher’s account or any other breach of security. Publisher agrees that it will be responsible for all activity that arises from Publisher’s account, whether initiated by Publisher or others on Publisher’s behalf and Program Manager shall be entitled to rely on any requests which have been initiated from Publisher’s account. Program Manager disclaims any liability for any activity in Publisher’s account, whether initiated or authorized by Publisher or not.
SOA Records. Program Manager shall have the right, but not the obligation, to serve start of authority resource records for any Publisher Site.
Publisher Responsibilities for Content. The Program provides Publisher the ability to control content appearing on the Publisher Sites, including, but not limited to, page design, taglines and keywords. Publisher acknowledges and agrees that it is Publisher’s sole responsibility to monitor and, if necessary, modify the content appearing on the Publisher Sites, including the removal of keywords that may be offensive or violative of the rights of a third party. Program Manager is not responsible for any such content or monitoring.
Consequences of Non-Compliance. Publisher acknowledges that, in addition to any other remedies at law that Program Manager may have, failure by Publisher to comply with these Terms of Service may result in (i) termination from the Program, (ii) the forfeiture by Publisher of any unpaid commissions and/or (iii) the obligation to pay additional compensation to Program Manager either by direct payments or via withholding of any future commissions that otherwise would have been payable to Publisher through the Program to compensate for any damages suffered by Program Manager as a result of such failure (plus applicable interest at the highest rate permitted by law).
Representations & Warranties
Publisher represents and warrants that (i) it has full power and authority to agree to these Terms of Service, (ii) it owns or has all necessary rights to use the Publisher Sites and related domain names, and (iii) no Publisher Site or associated domain name will infringe upon the intellectual property rights, or any other rights, of any third party.
Disclaimer and Limitation of Liability
THE PROGRAM MANAGER AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS (THE “PROGRAM PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). NONE OF THE PROGRAM PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PROGRAM PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE PROGRAM, (B) THE NUMBER OF PERSONS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PROGRAM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PROGRAM. IN NO EVENT SHALL PROGRAM PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR YOUR USE OF, OR INABILITY TO USE, THE PROGRAM, EVEN IF THE PROGRAM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ANY PROGRAM PARTY FOR ANY CLAIMS ARISING HEREUNDER SHALL NOT EXCEED FIVE DOLLARS ($5.00).
As between Program Manager and Publisher, Program Manager shall own all right, title and interest (including all intellectual property rights) in and to the Program and all software, technology, processes, materials, guidelines, documentation, enhancements and derivative works relating in any way to the Program. Publisher shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Program; (ii) remove any copyright, trademark or other proprietary rights notices affixed to or provided as a part of the Program, or any technology, software, materials or documentation related to the Program; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Program; (iv) transfer, sell, lease, lend, disclose, or use for co-branding, timesharing, service bureau or other unauthorized purposes any aspect of the Program or access thereto; (v) directly or indirectly access, launch and/or activate the Program through or from any software application or means other than the Publisher Site; or (vi) engage in any action or practice that reflects poorly on the Program, Program Manager or its vendors, or otherwise disparages or devalues the reputation or goodwill of the same.
Program Manager may revise these Terms of Service from time to time and any such revisions will be binding and effective ten (10) days from the date on which such modifications are posted to DomainSponsor.com.
Publisher will indemnify, defend and hold the Program Parties harmless against any and all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorneys’ fees, accounting fees, and expert witness fees) arising from (a) any breach by Publisher (or its agents) of any term or provision of these Terms of Service, (b) Publisher’s participation in or use of the Program, (c) any claim alleging that any Publisher Site infringes upon or violates any intellectual property rights, or any other rights, of any third party, or (d) an alleged failure by Publisher to satisfy its tax or withholding obligations as set forth above.
Relationship. Neither this Agreement, nor any terms and conditions contained herein may be construed as creating or constituting a partnership, joint venture, employment or agency relationship between the parties. Each party shall be and act as an independent contractor.
Force Majeure. Neither party shall have any liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting performance or delivery in any manner beyond the reasonable control of such party.
Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
Severability. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.
Attorneys Fees. If either party prevails in any action, suit, or proceeding arising from or based upon this Agreement, such party shall be entitled to recover from the other party reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
Assignment. This Agreement may not be transferred or assigned by either party other than by operation of law, except that Program Manager may transfer or assign this Agreement to any of its affiliates or any person who directly or indirectly acquires it. Any purported transfer or assignment (other than as provided herein) shall be void and of no force and effect.
Governing Law; Jurisdiction and Venue. This Agreement, together with the Terms of Service, shall be governed by, and construed in accordance with, the laws of the State of California, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. Any litigation based on, or arising out of, under, or in connection with this Agreement, shall be brought and maintained exclusively in the courts of the State of California or in the United States District Court for the Central District of California. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the courts of the State of California and of the United States District Court for the Central District of California for the purpose of any such litigation as set forth above. The parties hereto further irrevocably consent to the service of process by personal service within or without the State of California. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.
Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
Construction. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party drafted such provisions.
Headings. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement.