Terms of Services
Performance Advertising Network Agreement – Advertisers
This agreement pertains to YesUp Ecommerce Solutions Inc’s performance-based network, YesAdvertising, and its advertisers.
Please take the time to read and review our terms of service. The parties to this agreement hereinafter are YesAdvertising (“YesAdvertising”) and you the Advertiser (“Advertiser”, “Customer” or “You”). YesAdvertising facilitates “Performance Marketing Programs” (as defined hereinafter) by providing marketing services via the Internet. This Agreement shall govern participation in the YesAdvertising Marketing Service (the “Service” or “Marketing Service”). Taking any step to order, request Service or otherwise use the Service constitutes Advertiser assent to and acceptance of this Agreement. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Advertiser shall be construed as an inference to the contrary.
a) Performance Marketing Program – Performance Marketing Program is where a person, entity, Affiliate or its agent, operating Web site(s) and/or other promotional methods to drive visitors to conduct actions that was defined and ordered by the advertisers. For fulfilling the actions according to the definitions and by the limitations of the advertisers the Affiliates are entitled for payouts that were defined and agreed upon with the advertisers.
b) Affiliate – An individual or entity that has accepted, expressly or implied, to the terms and conditions of this User Agreement and allows its web site, pop-up links, SEM links, SEO links, Email links and other traffic sources to include banners and/or other acceptable forms or links to permit Traffic and or results between the Affiliate and those programs offered by YesAdvertising.
c) Results – Legitimate views, impressions and/or clicks including traffic that are generated by a third party on a Affiliate’s web site and or network so that such third party may view an Advertiser’s ad creative or linked to the Advertiser’s site or otherwise considered a purchase of the Advertiser’s products or services.
d) Creative – any image, text, programming code, graphic content, or any combination thereof that makes up an advertisement.
e) Advertiser Program – an advertising program.
g) Tracking Code – YesAdvertising code for tracking information.
2) USE POLICY
a) Membership – Membership in the Marketing Service is subject to prior approval of YesAdvertising. YesAdvertising reserves the right to withhold approval of membership or to refuse service to any new or existing Advertiser, at its sole discretion, with or without cause.
b) Representations and Warranties – Advertiser represents and warrants that: (1) it is the owner or is licensed to use the entire contents and subject matter contained in the Website and/or any Creative; (2) the Website and/or any Creative is free of any virus or other any other device that could impair or injure any person, or entity, computer equipment or software; (3) the Website and/or any Creative does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement; (4) the Website and/or any Creative does not contain any misrepresentations or content that is defamatory or violates any rights of privacy or publicity; (5) the Website and/or any Creative does not contain any child pornography or link to such content; (6) the Website does not contain any linking to software piracy; (7) the Website and/or any Creative does not contain or link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.); (8) the Website and/or any Creative does not contain any gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm; (9) the Website and/or any Creative does not contain any content promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.); (10) the Website and/or any Creative does not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam); (11) Advertiser will comply with all laws and regulations that may apply to Internet advertising, including, but not limited to the Children’s Online Privacy Protection Act, the Can-Spam Act, the Federal Trade Commission Act and the Digital Millennium Copyright Act; (12) the links contained in any Ads and/or Campaigns are directed to the intended and agreed upon destination and are not re-directed and (13) the Website does not and will not infringe any copyright, trademark, patent or other proprietary right. Advertiser grants YesAdvertising and the Affiliate the right and license to transmit the Creative to the Affiliate’s Website, and opt-in or opt-out emails, or in any other form of electronic advertising on the Internet. Advertiser shall provide YesAdvertising a written notice of 2 business days in advance of any change in the terms of any Advertising Program, and such change shall not be retroactive. Notices should be sent to advertisers@YesAdvertising.com. And the YesAdvertising account representative.
c) Program Details – The advertiser will sign and place his details of the Program and any Campaigns within its “Advertiser Set-up form”. This form will be completed prior to Your Program being activated. Advertisers are responsible for maintaining the correct contact and payment information associated with their account. This must be done online using the Advertiser’s account.
d) Payout Rates the payouts that were agreed upon in the IO above or the electronic form that was filled in YesAdvertising system will be binding. Any change in the rates of a campaign should be considered as closing a campaign and launching a new one, meaning at least 2 business days notice is needed.
e) Affiliates will be allowed to participate in promoting the advertiser campaigns based on the limitation/policy that will be defined and agreed upon in the IO.
f) Content – YesAdvertising does not accept Websites that advertise, produce, provide or link to adult content, promote or facilitate illegal activities, including but not limited to, pirating names used to access the website and hacking. YesAdvertising does not accept Websites that are under construction, personal home pages, or do not own the domain.
g) Terminating Affiliates from Your Program – After a Affiliate was approved to Your Program, You may terminate that Affiliate, or part of its activity on giving two (2) business days written notice effective from the 3rd day of such notice (“Affiliate Termination for Convenience”). You may terminate a Affiliate on less than two (2) days written notice if the termination is in respect of breach of the material provisions of the Affiliate’s Service Agreement or Your Program terms (“Affiliate Termination for Material Breach”). In order to terminate a Affiliate from Your Program for Affiliate Termination for Convenience, You must contact your YesAdvertising client relation representative.
h) Proprietary Rights and Licenses – You grant to YesAdvertising a revocable, non-transferable, royalty free, international license to display on and distribute from YesAdvertising’s Web site Links to Your Web site for Your Program(s), and all trademarks, service marks, tradenames, and/or copyrighted material (“Content”) that You provide to YesAdvertising through the Marketing Service for the limited purposes of promoting Your Program to Affiliates and potential Affiliates, subject to the terms and conditions of this Agreement and the Affiliate’s Service Agreement. The rights to display and Link to Your Web site are sub-licensable by YesAdvertising to our Affiliates. YesAdvertising shall not otherwise copy or modify any icons, buttons, banners, graphics files, or Content that You have made available through the Marketing Service pursuant to the foregoing license, except as necessary to conform Your Links to a YesAdvertising compatible format.
3) YESADVERTISING (CPXCENTER) TECHNOLOGY
YesAdvertising’s Code (the “Code”) – YesAdvertising code purpose is to enable tracking of the different performance models such as CPC, CPL and CPA. YesAdvertising Code will not be modified from original format without prior written consent from YesAdvertising.
a) Diversity of Tracking Technology – YesAdvertising Access Advertisers are provided with integration alternatives such as modified pixel tracking technology, data transfer tracking for interim processing by Advertiser, and rapid integration with standard pixel tracking technology.
b) Advertisers may utilize the “server side integration” method of tracking in addition to embedding a (for auditing & optimization purposes) that automates the reporting of commissions to YesAdvertising. “Server side integration” means that you are recording conversions on your servers and then reporting the data to YesAdvertising. If you are approved for utilize the Server side integration method, you agree to generate an HTTP / HTTPS request to YesAdvertising in accordance with the technical details provided and transfer requirements by YesAdvertising. The request shall be generated no later than an hour following the conversion.
c) Alternatively, at YesAdvertising’s sole discretion, Advertiser may utilize the “scheduled data transfer” method of tracking in addition to embedding a script pixel (for auditing purposes) that automates the reporting of Transactions to YesAdvertising. “Manual Data Transfer” means that you are recording Transactions on Your servers and then reporting the Transaction data to YesAdvertising. If You are approved for and utilize the Manual Data Transfer” method, You agree to make a daily report of data Transactions to YesAdvertising in accordance with the formatting, security, and transfer requirements as specified by YesAdvertising. In no event shall data be transferred later than 3 business days after the transaction. YesAdvertising may, at its discretion, require you to utilize pixel tracking. Transactions reported through Manual Data Transfer “shall be subject to the Chargeback procedures specified below.
d) Ad Serving; Tracking Code Maintenance – You agree to comply with YesAdvertising’s tracking code integration and maintenance requirements as notified to You by YesAdvertising from time to time. Your links and all advertisements contained in Your Links (“Ad Content”) must be in a Service compatible format, as such format may be established by YesAdvertising from time to time. If you have any non-standard YesAdvertising should approve the adjusted solution in writing.
e) If the tracking code is not recording tracking data properly on the Marketing Service and You are receiving Visitor traffic but Transactions are not being recorded, or if You are using an alternative tracking method to pixel image tracking and You fail to timely comply with Your reporting obligations, YesAdvertising shall calculate Payouts, and debit Your Account for such Payouts (“Estimated Payouts”) based upon an historical analysis of Your Account as applied to an historical analysis of Your Affiliates’ promotion of You. If there is not enough performance data for Your Account to make such analyses, YesAdvertising shall calculate Estimated Payouts based upon a performance average across the Marketing Service for all Advertisers for the period under review. The calculation in both cases will include the amount of traffic (impressions& clicks) that were sent to the advertiser.
f) Collection and Use of Transaction Data – YesAdvertising reserves the right to be able to utilize aggregate transaction data collected through the Marketing Service, which may include information about Your aggregate performance statistics, to analyze Service trends, monitor Marketing Service efficiencies, maintain the integrity of the tracking code, promote Marketing Service capabilities and efficiencies, and promote Your Program capabilities and efficiencies to Affiliates.
4) PAYMENT POLICY
a) There will be $1000 Setup Fee for new Advertiser account. The deposit for the campaign will need to be an approximate of 1 month’s (30 days) spending.
b) If customers choose to make over $2500 initial deposit, the $1000 Setup Fee will be waived so the whole amount pre-payment will be credited back to your account/campaigns as fund.
c) The advertiser will need to maintain a security deposit that equals to the last 30 day’s spending in order to keep the campaign(s) active within the YesAdvertising system.
d) In consideration for payment of the fees due according to this Section and compliance with this Agreement, YesAdvertising shall provide the Advertiser with access to the Marketing Service. YesAdvertising payment rate is based on the payout rate included in the Advertiser Program. Whatever rate the Advertiser decides upon, YesAdvertising retains 30% on top of the payout that is paid to Affiliates.
e) Campaign Results Approvals – Advertiser CPA (Cost Per Action), CPL (Cost Per Lead) and CPS (Cost Per Sale) campaigns can be set on either manual or automatic approval basis. It is an Advertisers responsibility prior to the launch of each applicable campaign to determine which type of approval is right for them and their particular campaign. Manual approvals must be undertaken in a timely way and it is recommended for Advertisers to approve or reject results on a daily basis or upon 5 business days (unless other was agreed specifically between the parties). In the event that the Advertiser fails to designate approval basis for its campaigns, as aforesaid, the approval will be automatically set as a manual approval. Advertiser acknowledges that Results must be validated in the system within five days from the end of every month. If the Results are not been validated in Advertiser’s Account as aforesaid, all un-validated Results will be automatically validated on the sixth day from the end of the applicable month and Advertiser irrevocably waives any claim with respect to such automatic validation.
f) Activity approval
1) Advertiser which by the terms of this agreement is set as an “Automatic approval” is hereby confirm that YesAdvertising System and the stats shown at that system are the sole source from which YesAdvertising will take the numbers to charged the advertiser for a given month.
2) Advertiser which by the terms of this agreement is not set as an “Automatic approval” is obligated to approve a lead/sale created close to the time the Lead/sale was created and either way not later than the last day of the month which in it the lead/sale was created.
3) Lead/sale who don’t stand up to term c.1 will be considered as an “Approved” lead/sale within 5 days from the last day of the month which in it the lead/sale was created in and as such he will be added to the count of lead/sale the advertiser will be charged for the given month.
g) Payment terms – YesAdvertising is adjusting the advertiser payment terms based on volumes, there prepayment:
1) Prepayment levels: In the second month of activity and based on the previous month results, the Advertiser will pay a prepayment by the following levels:
i. Monthly activity in the scale of up to $1,000.00 (USD) or its equivalent amount at the currency the Advertiser activity run it – a prepayment in the amount of 50% from the forecast monthly activity.
ii. Monthly activity in the scale of up to $3,000.00 (USD) or its equivalent amount at the currency the Advertiser activity run it – a prepayment in the amount of 75% from the forecast monthly activity.
iii. Monthly activity in the scale of up to $5,000.00 (USD) or its equivalent amount at the currency the Advertiser activity run it – a prepayment in the amount of 100% from the forecast monthly activity.
iv. Prepayment terms: Advertiser will pay the prepayment not later than 2 days after the prepayment invoice was sent.
2) Post payment:
i. Advertiser will pay for a given month payment according to the payment terms written at the IO.
ii. If advertiser pay by check they will do send the check by a mailing delivery service company (UPS/FedEx) so the delivery will be trackball.
h) The advertiser is obligated to stand up to the payment terms set above, a fail to do so will entitle YesAdvertising for a compensation which will be an interest of 1.5% per month
i ) Once payment to an Affiliate has been made it cannot be reversed. Affiliates will be paid based upon the undisputed amounts accrued in their account.
Chargeback – A “Chargeback” means that the Transaction is not eligible for a Payout, only in the following circumstances:
1) Product returns; duplicate entry or other clear error;
2) With respect to a Sale, non-receipt of payment from, or refund of payment to, the Visitor by You chargeback can be made only by YesAdvertising AM.
1) For Customers who request a refund, there will be some conditions applied as follows:
i. The customer is refunding due to issues pertaining to their end of the campaign, such as lack of products to promote or any technical issues on their end.
ii. The Advertiser must run a campaign for at least 30 days to be eligible for refund.
iii. The refund requirement must be noticed to YesAdvertising at least two days (48 hours) in advance. YesAdvertising will stop the campaign within two days (48 hours) when receive Advertisers refund requirement.
iv. In case any acquisition happened during the refund requirement processing period (48 hours) before stop the campaign, the payout will be deducted from the remainder.
v. The original setup fee is non-refundable. In the event of the initial deposit has been converted as credit to Advertiser’s account/campaigns, the $1000 Setup Fee will be deducted from the remaining deposit before the refund.
vi. The Administrative Fee, if charged, will be based on 3% of the total remainder of the Customer’s deposit. Administration Fee will not be applied on Setup Fee. It will only be applied on the total remainder after the Setup Fee deduction.
3) YesAdvertising will refund the money in US dollar. Advertiser will take the risk of exchange rate.
4) YesAdvertising will refund the remainder within 14 business days after campaign be stopped.
5) LIABILITY POLICY
a) Indemnification – Advertiser is solely responsible for any legal liability arising out of or relating to:
The content and other material set forth on the Advertiser Websites and/or;
Any content or material to which users can link through the Advertiser Websites (other than through an advertisement supplied by YesAdvertising).
Advertiser hereby agrees to indemnify, defend and hold harmless YesAdvertising and its officers, directors, agents, Affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, Fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Advertiser Websites (except for advertisements supplied by YesAdvertising); (b) arising out of any material breach by Advertiser of any duty, representation or warranty under any agreement with YesAdvertising; or (c) relating to a contaminated file, worm, virus, spyware, malware, adware, or Trojan horse originating from the Advertiser Websites (other than through an advertisement supplied by YesAdvertising).
b) Damages – In no event shall YesAdvertising officers, directors, agents, Affiliates and employees be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising thereunder or from the provision of services.
c) Warranty Disclaimer – TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YESADVERTISING DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) ADVERTISERABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT YESADVERTISING’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE AFFILIATE’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. YESADVERTISING IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR AFFILIATE, OR SUCH ADVERTISER OR AFFILIATE’S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE MARKETING SERVICE.
d) Limitation of Liability – neither YesAdvertising nor its users will be subject to any liability whatsoever for:
Any failure to provide reference or access to all or any part of the Website due to systems failures or other technological failures of YesAdvertising or of the Internet;
Delays in delivery and/or non-delivery of Creative, including, without limitation, difficulties with a customer or Creative, difficulties with a third-party server, or electronic malfunction; and,
Errors in content or omissions in any Creative. Advertisers are responsible for maintaining in all respects the availability of their web sites and subsequent landing pages.
ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF ALL FEES PAID AND PAYABLE BY YOU TO YESADVERTISING, AND INTEREST PAID AND PAYABLE BY YOU TO YESADVERTISING, FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST YESADVERTISING MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY A AFFILIATE OR ADVERTISER OF THE MARKETING SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
6) TERM AND TERMINATION
a) Term – This Agreement shall commence upon the date of Your click-through acceptance, and shall be in effect on a per Program basis for twelve (12) months from signing the IO (the “Initial Term”), Termination for Convenience: Either party may terminate this Agreement for any reason upon 2 business days (2) prior written notice to the other party.
b) Termination for Cause – Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 2 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the preceding, YesAdvertising may terminate this Agreement immediately upon notice should you engage in illegal activity of any type.
c) Renewal Terms – Upon expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms although either party may terminate this Agreement without cause notwithstanding the foregoing the parties may conduct periodical review meetings and amend the commercial terms of this Agreement in accordance with the results of such meetings. Each such modification will be made and writing and deemed to be an integral part of this Agreement.
d) Effect of Termination – Upon termination of this Agreement, You shall pay to YesAdvertising any outstanding debit balance within ten (10) days of the date of termination. In no event shall outstanding payments be made to Affiliates unless and until YesAdvertising receives payment from you. Upon reconciliation of Your Account, YesAdvertising shall pay you any outstanding credit balance after the conclusion of the last Chargeback Period.
Upon termination of this Agreement, any license or sublicense granted to You or by You under this Agreement will terminate, and the licensee/sub-licensee shall immediately destroy or delete all physical and electronic copies of the Confidential Information, and cause all Links to YesAdvertising to be removed. YesAdvertising shall:
1) Inform Your Affiliates that Your Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of temporary deactivation),
2) Stop distributing Links to Your Web site, and
3) Request (or suggest, in circumstances of deactivation) that all Links placed by Your Affiliates to Your Web site be removed from such Affiliates’ Web sites and/or subscription e-mail.
e) Survival – The provisions of this Section 6 and Sections 3.f, 4.a, 4.b, 4.f (to the extent that Chargebacks that occur post-termination are subject to the same terms and conditions as those that occur during the term of this Agreement), 5.a, 5.d, 6.a, 6.c, 7.a, 7.b, 7.c, 8 shall survive the termination of this Agreement.
7) Self Managed Clients (“SMC”)
In the event that the Advertiseris registered under YesAdvertising’s Self Managed Programs (as defined below), then the following terms shall apply with respect to Advertiser’s activities in connection with such Self Managed Programs and prevail with any contradiction or inconsistency with the general terms and conditions set forth above:
a) SCM is granted the full right and discretion to manage his/her/its managed programs which are established through YesAdvertising’s online system, including without limitation the right to determine his/her/its own rates, terminate and change programs etc. (the “Self Managed Programs”).
b) SCM bears full and sole responsibility and liability for the management of his/her/its Self Managed Programs and agrees and undertakes to hold YesAdvertising harmless and fully indemnified for any claim or demand which may be brought against YesAdvertising or any other entity on its behalf as a result of the Self Managed Programs upon its first request.
c) YesAdvertising reserves the right to immediately terminate without any notice or compensation to the SCM or any one on its behalf with respect to any of the SCM’s Self Managed Programs which, in YesAdvertising’s reasonable commercial discretion, are conducted in contradiction to the obligations of the SCM as set forth herein.
d) YesAdvertising Tracking Codes must be implemented and tested. SCM will not be permitted to commence or continue his/her/its Self Managed Programs until and unless the applicable Tracking Codes have been proven to be working to YesAdvertising satisfaction.
e) SCM acknowledges that the terms of each applicable SCM Self Managed Program are determined and offered by the SCM, in the event the SCM will not provide good incentive for the affiliates, they will not promote it and as a result the sales volumes will be very low. YesAdvertising makes no guarantees or representation on the payout volumes which may be gained by the Self Managed Programs. SCM further acknowledges that all collection and payment will be conducted exclusively by YesAdvertising and SCM shall not take any independent steps for collection.
f) As a condition to commence SCM activities the SCM will be required to deposit an advance payment in the sum of 5,000 in Advertiser’s working currency which will serve as security for the fulfillment of SCM’s obligations (“Security Payment”). YesAdvertising shall be entitled to withdraw any sums due by the SCM from such in the event SCM fails to comply with his/her/its obligations. SCM acknowledges that the Security Payment should be maintained during the entire term of SCM’s activity with YesAdvertising, and agrees that in the event the Security Payment falls below the aforesaid minimum sum YesAdvertising shall be entitled to terminate SCM’s account forthwith in addition to all other legal remedies, including withdrawal of all outstanding sums, available to it. YesAdvertising shall also be entitled to adjust SCM’s prepayments levels according to its discretion taking into consideration the scope of SCM’s activities.
This Agreement, including all attachments contained herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and existing understandings or agreements, whether made in writing or orally, in regard to the said subject matter. Applicable sections remain in force after the expiration or early termination of this Agreement. The relationships between the parties to this Agreement shall be solely that of independent contractors. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither YesAdvertising nor Advertiser shall present itself as the agent of the other, other than as specified in this Agreement. Neither party shall be liable to the other for delays or failures in performance for reasons beyond the reasonable control of that party, including, but not limited to, force major, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if made in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. In addition to terms that are negotiated and documented separately from this Agreement, terms that are automatically generated through the interactive use of the YesAdvertising website Advertiser interface are explicitly bound by this Agreement.
You or YesAdvertising may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
You agree that YesAdvertising may provide your basic Advertiser Account detail to Affiliates. You shall be responsible for all usage and activity on your account and for loss, theft or unauthorized disclosure of your password. You shall provide YesAdvertising with prompt notification to YesAdvertising client services help desk, and through written notification to YesAdvertising of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
c) Public Release
YesAdvertising and Advertiser shall have the right to reference each other and refer to each other’s work for, and relationship with, for marketing and promotional purposes.
YesAdvertising reserves the right to change any conditions of this contract at any time. Members are responsible for complying with any changes to the YesAdvertising Advertiser Agreement within 10 business days from the date of change. YesAdvertising will post any changes to this Agreement in the Advertiser area of the YesAdvertising Web site.
Advertiser shall support YesAdvertising’s commitment to protect the privacy of the online community; which is presented in http://www.yesadvertising.com/privacy-policy.
f) Solicitation of Affiliates
During the Term of this Agreement, any renewal Terms, and for three(3) months hereafter, You shall not knowingly solicit directly or through third party any Affiliate that is obtained through the Services provided by YesAdvertising under this Agreement, and You shall not encourage any such Affiliate to transfer. In the event you do directly solicit or cause to be transferred any Affiliate, You shall pay YesAdvertising what YesAdvertising would have otherwise earned if you had not violated this provision.
9) GOVERNING LAW
If any dispute arising in connection with the performance of this Agreement shall not be amicably resolved, such dispute shall be solely and finally settled as follows:
a) All Jurisdictions: Disputes shall be governed by and be construed according to the laws of Canada, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court of the State of Ontario Canada. The Disputes and arbitration shall be conducted in English.
b) Authority to Enter into Agreement – By executing this Agreement, Advertiser warrants that Advertiser (or Authorized Representative of Advertiser) is at least 18 years of age, and that there is no legal reason that Advertiser cannot enter into a binding contract.
c) Notices – Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail: (a) to YesAdvertising at 565 Gordan Baker Road, Toronto, Ontario Canada M2H 2W2 and, (b) for Advertiser, at the address listed on Your Account. Notices shall be effective upon the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND YESADVERTISING. BY SIGNING UP TO THE MARKTING SERVICE YOU AGREE TO HAVE AN UNDERSTANDING OF THESE TERMS AND CONDITIONS SET FORTH HEREIN. YOU CAN NOT PARTICIPATE IN THE SERVICE UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.