Terms & Conditions
ALL CLIENTS (HEREINAFTER "Client") ENROLLED IN THE PAID LISTINGS PROGRAM MUST COMPLY COMPLETELY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. CHITIKA, INC., a DELAWARE CORPORATION WITH PRINCIPAL PLACE OF BUSINESS AT 1800 WEST PARK DRIVE, WESTBOROUGH, MA (HEREINAFTER "Chitika") RESERVES THE RIGHT TO TERMINATE THE AGREEMENT AND/OR WITHHOLD PAYMENT FROM ANY HOST THAT VIOLATES ANY OF OUR TERMS AND CONDITIONS.
The parties hereto, in consideration of the mutual obligations set forth hereinafter and intending to be legally bound, hereby agree as follows:
Purpose. Chitika and Client hereby agree to enter into an agreement whereby Client will be enrolled in Chitika's Paid Listing Distribution Program whereby Client shall provide Chitika with certain Website content which Chitika will process using its proprietary content and behavior-based keyword technology. Chitika shall provide Client with relevant paid search results ("Search Results") comprised of a list of paid listings ("Paid Listings") for display on Client's Website.
- Program Participation. Participation in the Program is subject to Client's continued compliance with the Program Policies and Details which are set forth on Exhibit A attached hereto and made a part hereof, or such other URL as Chitika may provide to Client from time to time. Client agrees that Chitika may supply Paid Listings via a third party distributor and/or Chitika provided advertisements to the Website that Client designates ("Site") as set forth on Exhibit A. Client can choose to use the service on any website as long as the website meets the program policies listed in Exhibit A below. Client must be 18 years or older to participate in this program.
- Delivery of Services for Paid Listing Distribution. Client will send a Query initiated by a User on the Site to Chitika each time a User initiates a page view ("User Query'). A User Query can be either a search term or the URL on the Site. After receiving a User Query from Client, Chitika will deliver to Client either Paid Listings or a response that no Paid Listings are being delivered for that Query. After receiving Paid Listings from Chitika in response to a User Query, Client will display all Paid Listings on the Site; provided, however, that if Chitika delivers a response that no Paid Listings are being delivered for a User Query, Client and Chitika shall have no obligations to each other with respect to such User Query.
- Paid Listing Placement. Client agrees to comply with the technical specifications provided by Chitika and the Placement Requirements set forth below to ensure proper display of the Paid Listing on the Site. Paid Listings shall be grouped by Chitika and displayed with related Chitika search queries (where applicable) to end users of the Site as ad units (such groups of Paid Listings and related Chitika search queries collectively referred to as "Listing Units") in standard formats as offered generally by Chitika from time to time.
- Chitika Maps API. Chitika gives Clients a personal, worldwide, royalty-free, non-assignable and non-exclusive license to access, use, publicly perform and publicly display the Content in your Maps API Implementation, as the Content is provided in the Service, and in the manner permitted by the Terms. Specifically, the Client understands that the Content (including but not limited to map data, traffic, and directions) is provided for planning purposes only. Client may find that weather conditions, construction projects, closures, or other events may cause road conditions or directions to differ from the results depicted in the Content. Client should exercise judgment in use of the Content.
- Logo and Trademark Placement. With respect to any Paid Listing, the provider's logo, service mark or name will appear in the same format as other search engine's logos, service marks or names appear in such listing. For example, if other search engines are listed by logo and the logo provides the User with the ability to click through to the search engine Web site, the Paid Listing will also be identified by logo with associated click-through ability. Client also agrees to place the Chitika service mark or the Chitika logo, or any subsequent trademark or service mark designated by Chitika, within any Paid Listing obtained by Chitika and displayed on the Site in the same format used by Client for attributing other search results to other search engines.
- Prohibited Uses. Client shall not, and shall not authorize or encourage any third party to: (i) generate fraudulent impressions of or fraudulent clicks on any Paid Listing, including but not limited to repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software; (ii) edit, modify, filter or change the order of the information contained in any Paid Listing or Paid Listing Unit, or remove, obscure or minimize any Paid Listing or Paid Listing Unit in any way; (iii) frame any Web page accessed by an end user after clicking on any part of a Paid Listing link ("Advertiser Page"); (iv) redirect an end user away from the Advertiser Page, provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page or intersperse any content between the Paid Listing and the Advertiser Page; (v) display any Paid Listing on any error page, registration or "thank you" page (e.g. a page that thanks a user after he/she has registered with the applicable Web site), or in any email or on any Web page or any Web site that contains any pornographic, hate-related or violent content ; or (vi) act in any way that violates any Program Policies posted on the Chitika Web Site, as may be revised from time to time. Violation of any of the foregoing may result in immediate termination of this Agreement; (vii) disclose information related to the click through rates, CPCs and other statistics.
- Client's Obligations. Upon execution of this Agreement Client agrees to:
Not use any portion of the Paid Listings for any purpose other than displaying Paid Listings on the Site in the form designated by Chitika in response to a particular User Query.
Not save any Paid Listings provided by the Chitika and agree to initiate a new search through Chitika to access the Paid Listings for each User Query.
Not intentionally post misleading information with regard to the Paid Listings or directly or indirectly encourage or require users to access the Paid Listings or to otherwise generate click-throughs through any means which could be interpreted as coercive, misleading, malicious or otherwise fraudulent.
Display the Paid Listings in the order, manner and format received from Chitika and not to alter either the Paid Listings or the any licensed marks appearing in the Paid Listings except as previously agreed to in writing by both parties.
Not collect trends or data or information from the Paid Listings without prior consent for Chitika.
Not disclose proprietary information about Chitika and or its Paid Listings Providers, including URLs and parameters used to access Paid Listings. Any affiliates of the Client must access Paid Listings through the Client and not directly through Chitika;
Make reasonable efforts to stop "bots" or "spiders" from initiating requests for Paid Listings or executing click throughs on Paid Listings. Additionally, if Chitika informs Client of the IP addresses of agents, affiliates, networks of computers, or other third parties that appear to be using "bots" or "spiders", Client shall use reasonable efforts to block such IP addresses from accessing the Paid Listings service. Client shall notify Company as soon as practicable in the case where a "bot," "spider," "network," or User cannot be stopped from performing repeated searches or click throughs on the Paid Listings service or results, and shall not object if Chitika blocks such IP addresses on its own. A "bot" or "spider" shall be defined as a software program that executes searches or click throughs that were not initiated by unique Users of the Client's website or service. A "network" is any group of computers connected to the Internet.
Not utilize any means which would inhibit the User's internet browser from passing the referring URL to Chitika's Paid Listing's service.
Take sole responsibility for the Site, including all content and materials, maintenance and operation thereof, the proper implementation of Chitika's technical specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Chitika is not responsible for anything related to the Site and shall not be obligated to provide notice to Client in the event that Paid Listings are not being displayed properly to end users of the Site.
To direct to Chitika, and not to any advertiser, any communication regarding any Paid Listing displayed in connection with the Site.
- Revenue Payments. Chitika will make monthly revenue payments ("Revenue Payments") to Client based on the "Click Through Revenue" collected by Chitika. The "Click Through Revenue" shall be determined solely by Chitika or its ad distribution partners based on the average number of daily valid clickthroughs resulting from the queries originating from the Client and the aggregate traffic quality as measured by Chitika and its partners, for the applicable calendar month and shall be comprised of revenue received less all applicable commissions (payable by Chitika or its Partners) or Costs associated thereto. Revenue Payments are due and payable to Clients on a Net-30 basis. Chitika will not be responsible for any payments to Client until payment has been collected from Chitika's advertisers.
- Referral Program. Clients can refer publishers to Chitika's Paid Merchant Listings Program and earn 10% of the referred clients earnings, for the first 15 months, for any referred Publisher accepted into the program. To permit accurate tracking, reporting, and commission fee accrual, Chitika will provide Clients with special "tagged" link formats to be used in all links between the Client's Website and Chitika's Merchant Listings Program application page.
- It is the Clients responsibility to ensure that the "tagged" referral links are integrated properly on their websites.
- Clients may promote the program on their websites, as long as the website meets our program policies listed in this agreement.
- To protect the integrity of the reputation of Chitika brand name, Clients may not promote the "tagged" referral links via certain forms of indiscriminate advertising, commonly referred to as "spamming."
- Clients may not promote the "tagged" links via postings to non-commercial newsgroups or cross-postings to multiple newsgroups at once.
- Clients may promote the "tagged" referral links and the service via mailings to recipients who are already customers or subscribers to their Website's services, provided that the recipients have the option to remove themselves from future mailings. Further, Clients may promote the "tagged" links via newsgroup postings to newsgroups that specifically welcome commercial messages.
- Clients may not refer other websites that they own in full or in part. However, once a client is accepted to Chitika, the client may use the Chitika code on their other sites as long as they meet the other requirements outlined in this document.
- Clients may not promote the "tagged" via promotion on third-party search engines.
- In all promotions, Clients must clearly represent themselves as entities independent from Chitika and Chitika's Paid Listings Services.
Chitika reserves the right at its sole discretion to modify the foregoing rules at any time. Chitika reserves the right to take action against any person or entity that does not confirm to these rules.
- Termination. Client may terminate this Agreement, or cancel the participation of additional Site participating in the Program pursuant to Section 2, with or without cause at any time. Chitika may at any time, in its sole discretion terminate this Agreement, or suspend or terminate the participation of any Site under this Agreement for any reason whatsoever. In addition, Chitika reserves the right to terminate this Agreement or cancel participation in the Program of any Site without notice where such Site has not generated any clicks on Paid Listings (as measured by Chitika) for a period of two (2) months. Upon termination of this Agreement for any reason, sections 7, 10, 12, 13, 16, 18, 19 and 20 shall survive. Upon termination of this Agreement, Client agrees to assist in the removal from the Site upon termination of this Agreement any portion of the Paid Listings, Chitika's or its Paid Listings Providers' Logo, Chitika's or its Paid Listings Provider Licensed Marks or any other Chitika or its Paid Listings Providers' Intellectual Property from Client's Site. Where, pursuant to Section 2, Client has multiple Sites participating in the Program, the foregoing shall apply to cancellation or termination of any such Site in the Program without effecting this Agreement in relation to the remaining Sites when set forth in writing and signed by both parties.
- Confidentiality. Client agrees not to disclose Chitika's Confidential Information without Chitika's prior written consent. "Chitika Confidential Information" includes without limitation: (a) all Chitika software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Program; (b) click-through rates or other statistics relating to Site performance in the Program provided to by Chitika; and (c) any other information designated in writing by Chitika as "Confidential" or an equivalent designation. It does not include information that has become publicly known through no breach by Client or Chitika, or information that has been (i) independently developed without access to Chitika Confidential Information as evidenced in writing; (ii) rightfully received by Client from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- No Guarantee. Chitika makes no guarantee regarding the level of impressions of or clicks on any Ad, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to Client under this Agreement.
- No Warranty. CHITIKA MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
- Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR CLIENT'S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) CHITIKA'S AGGREGATE LIABILITY TO CLIENT UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY CHITIKA TO CLIENT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. . Neither party will be entitled to make any claim nor commence any proceedings arising out of any transactions pursuant to this Agreement unless the same is brought within one (1) year from the date the cause of action arose. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
- Publicity. Client agrees that Chitika may use Client's name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers and therefore grants Chitika a limited license to use Client's logo in accordance with the foregoing.
- Representations and Warranties. Client represents and warrants that (a) all of the information provided to Chitika in connection with this Agreement is correct and current; and (b) Client is the owner of the Site or that Client is legally authorized to act on behalf of the owner of such Site for the purposes of this Agreement and the Program; and (c) Client has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Client hereunder. Client further represents and warrants that each Site and any and all material displayed therein: (i) complies with all applicable laws, statutes, ordinances and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related or otherwise violent in content.
- Indemnification. Client agrees to indemnify, defend and hold Chitika, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), arising out of, related to this Agreement or which may arise from Client's enrollment in the Program, use of the Site, and/or its breach of any term of this Agreement.
- Information Rights. Chitika may retain and use for its own purposes all information Client provides, including but not limited to Site demographics and contact and billing information. Client agrees that Chitika may transfer and disclose to third parties personally identifiable information about Client for the purpose of approving and enabling Client's participation in the Program, including to third parties that reside in jurisdictions with less restrictive data laws. Chitika disclaims all responsibility, and will not be liable to for any disclosure of that information by any such third party. Chitika may share aggregate (i.e., not personally identifiable) information about Client with advertisers, business partners, sponsors, and other third parties. In addition, Client grants Chitika the right to access, index and cache the Site(s), or any portion thereof, including by automated means including Web spiders or crawlers.
- No Rights Granted. Client acknowledges that any and all of the trademarks, trade names, copyrights, patents, and other intellectual property rights utilized by Chitika in connection with the performance of this Agreement will be and remain the sole property of Chitika. Client acknowledges that no rights or licenses are granted with respect to any of the foregoing under this Agreement.
- Entire Agreement. This Agreement and any Exhibits identified herein constitute the whole agreement between the parties with respect to the subject matter hereof. CLIENT hereby acknowledges that it has not relied on any prior or contemporaneous representations, written or oral, not set forth in this Agreement with respect to any matter related to the interpretation or performance of this Agreement
- Miscellaneous. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Worcester County, Massachusetts. Any modifications to this Agreement must be made in a writing executed by both parties except that Chitika may update the Program Policies by providing Client with such URL modifying the policies from time to time. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. Client may not resell, assign, or transfer any of its rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Chitika. Notwithstanding the foregoing, Chitika may assign this Agreement to any affiliate at any time without notice. The relationship between Chitika and Client is not one of a legal partnership relationship, but is one of independent contractors and that neither party has the authority to bind the by contract or otherwise.
- Electronic Signature: Client acknowledges and agrees that by checking the Terms and Conditions check box on the online application form, client is a duly authorized signatory, 18 years or older, has all the necessary authority to bind the individual, company or entity using the Paid Listings service under this Agreement and is submitting a legally binding electronic signature and entering into a legally binding contract. Client also hereby waives 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.
Exhibit A: Program Policies
All publishers who apply for the Paid Listings Distribution program are reviewed according to these program policies. We also monitor sites after they begin running the Paid Listings under this program. If a site is found to be in violation of our policies at any time, we will warn the publisher or suspend or terminate the account.
Account Transferability: Chitika's Paid Listings Distribution accounts are not transferable, assignable or resalable in connection with the sale of your site or otherwise. For example, when a site changes ownership or management, the prior owner or manager must cancel the Paid Listings Distribution account for the site, and the new owner or manager may apply up for a new Paid Listings Distribution account in his or her name.
- Multiple Paid Listings units may be displayed on each Web site page
- Paid Listings must not be displayed on any domain parking websites, pop-ups, pop-unders, error, registration, or "thank you" pages, or in any email.
- Paid Listings may not be placed on pages published specifically for the purpose of showing ads, whether or not the page content is relevant.
- Elements on a page must not obscure any portion of the Paid Listings, and the Paid Listings colors must be such that the ad text and URL are visible.
Copyrighted Material: In order to avoid associations with copyright claims, website publishers may not show Paid Listings in areas such as MP3, Video, News Groups, and Image Results. However, ads can be displayed on pages with links to these items.
Dialers: Your site must not require or prompt an end user to download a dialer in order to view content of the site. Web pages may not include incentives of any kind for users to click on ads. This includes encouraging users to click on the Paid Listings or to visit the advertisers' sites as well as labeling the Paid Listings with text other than "sponsored links" or "advertisements."
Language: The Paid Listings code may be placed on pages with content primarily in English. Paid Listings must not be displayed on any page with content primarily in an unsupported language, without prior written consent from Chitika.
Prohibited/Fraudulent Clicks: Any method that artificially and/or fraudulently generates clicks is strictly prohibited. These prohibited methods include but are not limited to: repeated manual clicks, using robots, automated clicking tools, or other deceptive software. Please note that clicking on your own Paid Listings for any reason is prohibited, to avoid potential inflation of advertiser costs.
Site Content: To maintain the integrity of the Chitika network, sites content may not include:
- Excessive profanity
- Illicit drugs and drug paraphernalia
- Pornography, adult, or mature content
- Gambling or casino-related content
- Hacking/cracking content
- Excessive advertising and/or incentives (monetary or point-based) to users or third-party beneficiaries for online activity including, but not limited to, clicking on ads or links, performing searches, surfing websites, reading emails, or completing surveys
- Pop-ups, pop-unders or exit windows that interfere with site navigation, obscure Paid Listings, change user preferences, or are for downloads. Other types of pop-ups, pop-unders, or exit windows may be allowed, provided that they do not exceed a combined total of 5 per user session
- Content related to the sale of:
- alcoholic beverages
- counterfeit or stolen items
- prescription drugs
- tobacco and tobacco-related products
- body parts and/or bodily fluids
- hazardous substances and materials
- weaponry, explosives, fireworks, and/or ammunition
- Propaganda, potentially offensive or controversial content
- Hate, violence, racial intolerance, or advocate against any individual, group, or organization
- Deceptive or manipulative content or construction to improve your site's search engine ranking.
- Any other content that promotes illegal activity or infringes on the legal rights of others
- Content targeted at children under 13 years of age
Site Functionality: Your site must not contain broken links and must be launched, functioning, and easily navigable.
Site Responsiveness: Sites must respond adequately to support requests and enquiries of their users.
Program Policies Updates: Chitika may provide updates to the Program Policies from time to time and Client must also adhere to all revised terms.
These Terms and Conditions were last updated on: August 21st, 2013.