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1. INTRODUCTION: Zango Technologies LLC and its subsidiaries and affiliated entities (collectively, "Zango") provide you access to the Zango Advertising System (defined below) subject to your compliance with these Terms and Conditions (this "Agreement"). In this Agreement, "you" and "your" refer to the Advertiser or Agency referred to in an Insertion Order that references this Agreement. For the purposes of the remainder of this Agreement, the term "Advertiser" shall also include, and refer to, Agency, if the applicable Insertion Order was signed by such. Please read this Agreement carefully. By enrolling as an Advertiser, you agree to be bound by this Agreement, whether you or your principal are acting on your behalf or on behalf of a third party, including an advertiser, and that if you are acting on behalf of a third party, that you have authority to act on behalf of that third party and that they have agreed to be subject to and to abide by the terms of this Agreement. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Zango Advertising System will be subject to and will abide by this Agreement.
2. USE: For purposes of this Agreement, the "Zango Advertising System" includes the process by which you select "Targets" (keyword, URL, category, and/or any other targeting mechanism offered by Zango) and by which, when such Targets are subsequently indicated by an Internet browser search performed by a "Zango User" (any individual who has installed the Zango Search Assistant, Seekmo Search Assistant, Spam Blocker Utility Search Assistant, or the Hotbar Search Assistant, or any other proprietary software as may be currently owned and offered by Zango), an "Advertising Message" (as defined below) specified by you will be displayed. As specified in an applicable Insertion Order, an Advertising Message may consist of (a) an advertisement hosted either by Zango on your behalf, or by you on your behalf, which may appear on a Zango website; in a Zango toolbar; in a temporary, branded window that slides up from (e.g.) the system tray located at the bottom corner of the Zango User's screen; via a separate browser window that opens on the Zango User's computer desktop; or (in the case of Zango Users who have downloaded software offered through Zango subsidiaries Hotbar.com, Inc. or Spam Blocker Utility Inc.) an icon placed on the Zango User's computer desktop; or (b) the launch of a Web site that you designate in a separate browser window on the Zango User's computer screen. Your Advertising Message may be displayed as a result of the Target that you have selected as well as certain misspellings, singular/plural combinations, and other related terms or URLs that include your Target. In some instances, an Advertising Message is placed based on bids by Advertisers for certain Targets.
3. NO GUARANTEED PLACEMENT: Zango does not guarantee that your Advertising Messages will be available through any part of the Zango Advertising System and you understand that Zango reserves the right to not place your Advertising Messages and/or discontinue placing your Advertising Messages within the Zango Advertising System.
4. MINIMUM BID: Depending on the type of Advertising Message specified in the applicable Insertion Order, your listings in the Zango Advertising System may subject to Zango current minimum bid and minimum cost requirements; if your cost per unit is outbid by other advertisers, or your bid is lower than the current minimum bid for any Target, your Advertising Message may not be shown.
5. PAYMENT: You agree to pay Zango all applicable charges to your account in United States dollars, in accordance with the terms of the program and/or payment plan you selected and identified in the applicable Insertion Order, including all applicable taxes (if any), in accordance with billing terms in effect at the time the charges becomes payable. If you have chosen a payment plan that provides for a fixed maximum payment per month, you understand and agree that if your charges equal or exceed your monthly maximum payment, then your Advertising Messages will be removed from the Zango Advertising System for the remainder of that month. When paying by credit card, you may pay Zango only with Visa, MasterCard, or American Express. You agree and represent that all information you provide for the purpose of enrolling as an Advertiser will be accurate, complete, and current. Your right to access your Zango Advertising System account is subject to any limits established by Zango. Zango reserves the right to either suspend or terminate your Zango Advertising System account if: (a) you fail to make payment on time; (b) you are pre-paying by wire, but fail to replenish funds to your account after your account reaches a zero balance; or (c) payment cannot be charged to your credit/charge/debit card, for whatever reason, or if there is a chargeback for any reason, or if your financial institution rejects our charge to your credit/charge/debit card, or if you exceed your monthly maximum payment. Suspension or termination includes, but is not limited to, removal of your Advertising Messages from the Zango Advertising System. In the event you are past due in payment of any invoice, all amounts owing as of that date will become immediately due and payable. Payment is late for any balances not received according to the payment terms indicated on the applicable Insertion Order. A late charge on all outstanding balances will be assessed at the lower of 1.5% or the maximum allowed by law for each month in which the balance remains unpaid. You must submit any claims or disputes you may have with respect to any charge to your account in writing to Zango within 60 days of such charge; otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge. In the event of any failure by you to make payment, you will be responsible for all reasonable expenses (including attorneys' fees and costs paid to outside counsel and reimbursement for in-house counsel time at rates equal to counsel's then-current fully-allocated compensation and overhead) incurred by Zango in collecting such amounts. Please see Section 19 ("Refunds") for information regarding our refund policy.
6. AUTOMATIC DEPOSIT: If you enroll in the Automatic Deposit Plan, then you authorize Zango to automatically charge your credit card for the amount specified on the enrollment form whenever your account drops below a positive balance of $10.00. You understand that you will receive e-mail notification after each such transaction to notify you that your account has been replenished. Such charges will appear on your monthly credit card statement. Zango reserves the right to terminate this payment plan and/or your participation therein at any time. You also understand that you may elect at any time to discontinue your enrollment in this plan by modifying your selection and billing option within the Zango Advertising System. Unless you discontinue your enrollment in this plan, you understand that this authorization is valid until the termination of this Agreement or until your credit card expires.
7. MONTHLY FIXED PAYMENTS: If you enroll in the Monthly Fixed Payments Plan, then you authorize Zango to automatically charge your credit card each month up to the maximum amount specified on the enrollment form. You agree that the amount charged to your credit card will be equivalent to your monthly budget less any credits remaining from the prior month. You understand that you will receive e-mail notification from Zango at the beginning of each month to notify you of the amount your credit card has been charged to replenish your account. Such charges will appear on your monthly credit card statement. You understand that your Zango account may be suspended for the remainder of the month in which your account exceeds your budget amount. Zango reserves the right to terminate this payment plan and/or your participation therein at any time. You also understand that you may elect at any time to discontinue your enrollment in this plan by modifying your selection and billing option within the Zango Advertising System. Unless you discontinue your enrollment in this plan, you understand that this authorization is valid until the termination of this Agreement or until your credit card expires.
8. ACCESS: For purposes of this Agreement, all Web pages owned or operated by or on behalf of Zango are referred to in this Agreement as the "Zango Web Sites." You are authorized to access the Zango Web Sites solely to manage your advertising accounts. You agree that you will not use the Zango Web Sites or any content therein for any other purpose and that you will not disseminate or distribute any pricing or performance information. Your right to access your Zango Advertising System account and the Zango Web Sites is personal to you and non-assignable and is subject to any limits established by Zango. You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access your account with Zango or to monitor or copy any Zango Web Site or the content contained therein, except those automated means expressly made available by Zango, if any, or authorized in advance and in writing by Zango (for example, Zango-approved third-party tools and services).
9. ADVERTISER'S RESPONSIBILITIES: You are responsible for understanding the process and workings of the Zango Advertising System and for adherence to the Zango Advertiser Code of Conduct, located at http://advertise.zango.com/pl/CodeOfConduct.aspx. You are solely responsible for the selection of all Targets and for the content of your Advertising Messages, including the content of Web pages to which your Advertising Messages link. You are responsible for handling all inquiries relating to your Advertising Messages. You are responsible for storing and delivering your Advertising Messages on your behalf unless otherwise specified in the applicable Insertion Order. You agree never to alter any Zango ad placement tags so as to include any personally-identifiable or sensitive information of any visitors in such tags. You represent that, in connection with any information you submit regarding your Zango account, you have read and will conform to Zango's then-current Privacy Policy as it appears on the Zango Web Sites. You agree that Advertising Messages provided to Zango and/or delivered on your behalf, and your other promotional and marketing activities in connection with your Advertising Messages, will not be deceptive, misleading, obscene, sexually explicit, defamatory, illegal, unethical, for products or services competitive with Zango's products and services, or for products that may interrupt Zango's functionality. Without limiting the foregoing, your Advertising Messages will not be for products, services, or companies in the following categories or fields: (1) anti-spyware/anti-adware programs, (2) software displaying contextual pop-up ads to its users, (3) browser plug-in toolbars, (4) e-mail customization software, or (5) emoticons. Zango is not responsible for anything regarding Web sites that you operate or any Web sites that you designate or link to ("your Web Sites"), including, but not limited to, maintenance of your Web Sites, order entry, customer service, payment processing, shipping, cancellations, or returns. You represent and warrant that all information and content in the Advertising Message itself or through any of your Web Sites (i) does not violate any law or regulation; (ii) does not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any third party; (iii) does not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, and has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage, or harm of any kind to any person or entity; (iv) is not false or misleading; and/or (v) is neither defamatory, libelous, offensive, slanderous, or threatening.
10. VIOLATIONS OF ZANGO ADVERTISER CODE OF CONDUCT: You understand and agree that strict compliance with the Zango Advertiser Code of Conduct is at the essence of the relationship between you and Zango. You further agree that damages from breach of the Zango Advertiser Code of Conduct may be difficult to calculate. Accordingly, you agree that if you (either directly through yourself, or through your agent or any third party you represent) violate the Zango Advertiser Code of Conduct (as determined by Zango in its sole discretion), in addition to your indemnification obligations set forth in this Agreement, you will be subject to the following liquidated damages: two times (2x) the amount equal to what you paid or owed during the two (2) months immediately preceding the date of your breach of the Zango Advertiser Code of Conduct. The foregoing shall in no way limit the legal or equitable rights or remedies available to Zango in connection with a violation of the above requirements, or otherwise.
11. ZANGO-CREATED ADVERTISING MESSAGES: If Zango agrees in the applicable Insertion Order to create Advertising Messages for you, you must provide (a) sufficient information, as requested by Zango, to enable Zango to create the Advertising Messages on your behalf, and (b) timely approval of all Zango-created Advertising Messages. You must fill in the Creative Request Form provided by Zango. You will be permitted to make one round of revisions to each Advertising Message. Thereafter, revisions to each Advertising Message (including resizing the Advertising Message) will be charged to you at the rate indicated on the applicable Insertion Order. If Zango agrees to third party serving and/or third party creatives, you will provide to Zango in writing, 24 hours in advance, the list of entities the advertising was purchased from and the creative material to be displayed. In any event, Zango reserves the right to approve, reject, or cancel any Advertising Messages or third party creatives at any time for any reason. You represent that you have all rights to all creatives and other material provided to Zango by you or on your behalf. Zango will own all right, title, and interest in and to Advertising Messages created by Zango, including but not limited to the source files of such Advertising Messages and any intellectual property rights that may exist in respect of the content of such Advertising Messages. You are granted a limited license to use such Advertising Messages only under the terms of this Agreement and you are not entitled to use the Advertising Messages (or a substantial part of their contents) in any other manner whatsoever outside of the Zango Advertising System.
12. ACCEPTING ZANGO SUGGESTIONS: Zango reserves the right to suggest, refuse, or remove any Target or Advertising Message at its discretion at any time. Zango also reserves the right to make minor edits to keywords to ensure proper technological functioning. From time to time (or as part of a particular program), Zango may provide suggestions to you for Targets, or for any other element of an Advertising Message, but the final decision to authorize any suggestion is yours. Ideas provided by Zango are only suggestions, and you are under absolutely no obligation to use such suggestions, nor is Zango liable in any manner for such suggestions. By using a Target that may have been suggested by Zango, you accept the responsibility to ensure that such Target is in compliance with this Agreement, including Section 9 ("Advertiser's Responsibilities"). Zango reserves the right to terminate or suspend your account if you violate any of the terms in this Agreement.
13. CONFIDENTIALITY: "Confidential Information" means any information disclosed to you by Zango, either directly or indirectly, advertently or inadvertently, in writing, orally, or by inspection of tangible objects, other than information that you can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Zango; (ii) becomes publicly known and made generally available after disclosure to you by Zango other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, at the time of disclosure by Zango as shown by your files and records immediately prior to the time of disclosure. You will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information, (b) use any Confidential Information, or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information will at all times remain Zango personal property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information will be delivered to Zango immediately upon Zango's request.
14. REPRESENTATIONS AND WARRANTIES: You represent and warrant that you have the authority to enter into and to perform under this Agreement, and that by doing either or both you are not (a) breaching any obligation, contractual or otherwise, that you have to any third party, or (b) violating any applicable law or regulation.
15. INDEMNIFICATION/REIMBURSEMENT: You hereby agree to indemnify and hold harmless Zango, its affiliates, and their information providers, licensors, licensees, consultants, contractors, agents, officers, directors, attorneys, and employees ("Zango Entities") from any and all liabilities, costs, and expenses, including, without limitation, reasonable attorneys' fees, that may arise from (i) your use of the Zango Advertising System or Zango Web Sites, other than in strict compliance with the terms and conditions of this Agreement, and/or your Web Sites, (ii) any third party allegation or claim that any information or content in one of your Targets, your Advertising Messages, or a Web site to which the Advertising Message links infringes upon or misappropriates any copyright, patent, trademark, trade secret, or other intellectual property right of any third party, (iii) any breach of the confidentiality obligations of this Agreement, or (iv) your breach of the terms of this Agreement, including, without limitation, the breach of any representation or warranty, or of the Zango Advertiser Code of Conduct. Without limiting the foregoing, you agree to be solely responsible for payment of damages or losses resulting from the foregoing to a third party and Zango or any other indemnified party. In addition, in matters in which Zango is not an adverse party, you shall pay or reimburse Zango for all reasonable staff time, attorneys' fees and expenses Zango incurs in relation to subpoenas, depositions, discovery demands and other inquiries in connection with suits, proceedings, governmental, legislative or regulatory hearings, investigations or other civil or criminal proceedings in which you are a party, subject, target, or otherwise involved.
16. WARRANTY DISCLAIMER: YOU EXPRESSLY AGREE THAT YOUR USE OF THE ZANGO ADVERTISING SYSTEM IS AT YOUR OWN RISK. THE ZANGO ADVERTISING SYSTEM IS AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE ZANGO ENTITIES DO NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE ZANGO ADVERTISING SYSTEM, THE SUCCESS OF YOUR TARGETS AND ADVERTISING MESSAGES AS MEASURED IN ANY WAY, ANY INFORMATION, SERVICES, OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH ZANGO, THE ZANGO ENTITIES, AND/OR THE ZANGO ADVERTISING SYSTEM, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. ZANGO HEREBY DISCLAIMS ON BEHALF OF ITSELF AND THE ZANGO ENTITIES ANY AND ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF THE ZANGO ADVERTISING SYSTEM AND/OR INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE ZANGO ADVERTISING SYSTEM; AND (2) ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
17. LIMITATION OF LIABILITY: ANY LIABILITY OF ZANGO OR THE OTHER ZANGO ENTITIES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, WILL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO ZANGO FOR TARGETS AND PLACEMENT OF ADVERTISING MESSAGES IN THE PRIOR SIX-MONTH PERIOD. IN NO EVENT WILL ZANGO OR THE OTHER ZANGO ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE ZANGO ADVERTISING SYSTEM AND/OR THE SITES THAT THE ZANGO ADVERTISING SYSTEM LINK TO, OR FOR ANY BREACH OF WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT YOU WILL NOT HOLD ZANGO RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE ZANGO ADVERTISING SYSTEM AND/OR SITES TO WHICH THE ZANGO ADVERTISING SYSTEM MAY LINK, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM ZANGO CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE ZANGO ADVERTISING SYSTEM AND THOSE TO WHOM ZANGO PROVIDES LINKS TO FOR CONTENT, ADVERTISING, OR ANY OTHER TYPE OF DATA OR INFORMATION.
18. CANCELLATION OR TERMINATION: If you are dissatisfied with the Zango Advertising System or with any of the terms and conditions contained in this Agreement, your sole and exclusive remedy is to terminate your Zango Advertising System account. If you signed up on-line, you may cancel your account and participation in the Zango Advertising System at any time by logging into Zango Advertising System and canceling your account. If you signed an Insertion Order with Zango, you may cancel according to the terms and conditions in the applicable Insertion Order. Notwithstanding anything contained in this Agreement or the applicable Insertion Order to the contrary, Zango may immediately and in its sole discretion suspend or terminate your account, your participation in the Zango Advertising System, and this Agreement, together with the applicable Insertion Order, for any breach of this Agreement by you. Zango may also immediately and in its sole discretion, discontinue your use of any Target or any Advertising Message. All decisions made by Zango in this matter will be final and neither Zango nor the other Zango Entities will have any liability with respect to such decisions. IMPORTANT: CANCELLATION OR TERMINATION MAY NOT ALWAYS ENTITLE YOU TO A REFUND. PLEASE SEE SECTION 19 ("REFUNDS) FOR MORE INFORMATION.
19. REFUNDS: You will only receive a refund for amounts not yet charged to your account. You will not receive a refund for any services already provided to you. Please see Section 5 ("Payment") for more information.
20. NOTICES: Zango may give general notices to you by posting such notices on the Zango Advertising System or on www.Zango.com or any one of the Zango Web Sites, or by sending via electronic mail to the e-mail address provided by you to Zango. It is your responsibility to ensure that your e-mail address and any other contact information you provide to Zango is current, updated, and correct at all times.
21. CHOICE OF LAW: This Agreement will be construed and controlled by the laws of the State of Washington. Any dispute arising from or related to this Agreement, including, without limitation, a breach of this Agreement, will be governed by the laws of the State of Washington, without regard to its conflict of laws principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. Any claim against Zango arising from this Agreement will be adjudicated on an individual basis, and will not be consolidated in any proceeding with any claim or controversy of any other party.
22. OTHER: This Agreement, together with the Insertion Order that references this Agreement, constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals, and communications, written or oral, between you and Zango. If there is a conflict between the Insertion Order and the terms in this Agreement, the terms of the Insertion Order will prevail. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of this Agreement. YOU AGREE THAT ANY TERMS AND CONDITIONS THAT APPLY TO USERS OF YOUR WEB SITES, CLICK-THROUGH TERMS AND CONDITIONS REQUIRED TO LOG IN TO YOUR WEB SITES, OR OTHERWISE, WHETHER CLICKED ON BY ZANGO PRIOR TO OR AFTER THE START DATE OF THE APPLICABLE INSERTION ORDER, WILL NOT SUPERSEDE, ALTER, OR AFFECT THESE TERMS AND CONDITIONS. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of this Agreement, and the invalid or unenforceable provisions will be replaced by a mutually acceptable provision that, being valid, legal, and enforceable, comes closest to the original intentions of the parties hereto and has like economic effect. This Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party, except as specifically set forth in this Agreement. Zango may change this Agreement at any time upon notice published on the Zango Advertising System or any one of Zango's Web sites or by e-mail notification to you. Any use of the Zango Advertising System or any of one of Zango's Web sites after such notice will be deemed to be continued acceptance of this Agreement, including its amendments and modifications. Zango reserves the right to discontinue offering the Zango Advertising System at any time. Zango will have no liability hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, computer virus, acts of god, war, governmental action, or any other cause that is beyond Zango's reasonable control. Sections 5, 8, 11, and 15-22, inclusive, will survive any termination of this Agreement.
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