Pinball Corporation (“Pinball”) Web Publisher Code of Conduct
Updated July 14, 2009
Unless otherwise defined herein, capitalized terms used in this Code of Conduct shall have the same meaning as ascribed to them in the Web Publisher Agreement.
- For purposes of this Code of Conduct, a “bundled” product or “application” includes all other products or applications that may be downloaded to, and installed on, the User’s computer at the same time as the Product, or at a later time by an application or product initially delivered at the same time as or otherwise connected to the Product, excluding new version updates and upgrades to the initially delivered application or product. See also “Notice Required” section, below.
- Web Publisher Site.
- Web Publisher Site must be (i) content-based, i.e., not simply a list of links or advertisements, nor a site which is centered around making money off of Company advertisers, as may be determined by Pinball in its sole and unfettered discretion; (ii) written solely in English (exceptions require Pinball’s specific, prior written approval); (iii) a top-level domain, as that term is defined by the Internet Corporation for Assigned Names and Numbers; and (iv) fully functional at all levels, i.e., no “under construction” sites or sections. Web Publisher Site must not contain incentives to Users to click on ads such as cash awards, points, prizes, contest entries, etc. Web Publisher Site shall not primarily target Users younger than 18 years of age.
- Web Publisher Account.
- Only one Account is allowed per company or organization unless otherwise agreed to in writing by Pinball. Web Publisher may use this Account for multiple Web Publisher Sites, provided that Web Publisher registers each and every Web Publisher Site in their Account where Pinball software will be distributed.
- Notice Required.
- Web Publisher agrees to accurately provide easy-to-read and easy-to-understand notice and information to all Users of Products and all other applications that are bundled with Products (if any, and which requires Pinball’s specific written consent), before initiating a download to and installing the Products or applications on a User’s computer and to give such User an easy and appropriate method to agree or not to agree to such installation. Web Publisher shall under no circumstances attempt to launch a Product executable without first displaying the above-described messaging and receiving explicit User consent for the installation. Company reserves the right to approve final wording of this messaging and to require periodic changes as necessitated by changes to Products or for other business reasons. Web Publisher shall not alter code to automatically initiate the license prompt, nor shall Web Publisher drive traffic to web pages where content is set to autoplay. Content may only be set to autoplay on pages displayed following explicit User action (such as a mouse click).
- Easy Uninstall Required; TRUSTe Compliance.
- Web Publisher will ensure that the User may easily remove and/or uninstall not just the Products, but each and every other application bundled with Products by using the Microsoft Windows “Add or Remove Programs” menu. Web Publisher will also ensure that all applications bundled with Products adhere to terms no less restrictive than those contained in this Code of Conduct. Other products or applications that act as program “Trojans” (installing additional applications without full product descriptions and EULA acceptance) shall not be bundled with any Product. In addition, Web Publisher will ensure that its product(s), and/or service(s), particularly those product(s) and/or services it bundles with Products, adhere to the requirements of the TRUSTe Trusted Download Certification Agreement guidelines (for details on the Program, visit http://www.truste.org/pdf/Trusted_Download_Certification_Agreement.pdf), including, without limitation, that such applications do not contain code that reinstalls the Products automatically if removed by means other than the Add or Remove Programs feature. Such reinstall may only occur after the User has affirmatively opted-in to the reinstall.
- Audit Rights.
- At any time, Pinball will be allowed to test all other products with which a Product (or, without limitation, any portion or derivation thereof) is bundled to ensure Web Publisher’s compliance with the guidelines and terms herein. Neither the conducting of such testing, nor the failure to do so, will act as any certification or other affirmation that Web Publisher is in compliance with the terms and conditions herein nor relieve Web Publisher from any liability hereunder. Upon request, Web Publisher is required to provide live links to all locations where Pinball’s products are available. Upon request, Web Publisher is also required to provide additional proof of identification in a form acceptable to Pinball in its sole discretion.
- No Spam.
- Pinball does not accept any form of spam and detects/discards all traffic from unsolicited email, newsgroups, instant messages, chat forums, unauthorized adjustment of default home page or search features within standard browser settings and all other methods other than that generated from an active human. Spamming by any of these methods will cause the responsible Web Publisher Account to be terminated.
- No Objectionable, Inappropriate, or Unlawful URLs.
- The action of sending any hits from any URLs or any materials protected by DRM technology that contain and/or promote the following content is not permitted: warez, cracks, serials, keygens, ROMs, EMUs, newsgroup postings, spam emails, illegal MP3s or any other site that contains content or promotes activities that are illegal in the United States of America.
- No Fraudulent Installs.
- Web Publisher shall not generate or facilitate fraudulent or artificially created installs, including, without limitation, installs generated through (i) forced, automated, mechanical or electronic means (including hitbots, multiple clicking scripts, hidden links, incentivizing surfers or any other similar activity), (ii) altering the User’s security settings, or (iii) unsolicited emails, electronic data mining, harvesting or other similar means of generating artificial activity (e.g., transfers generated by a bot, macro program, internet agent or other similar device). Web Publisher may not send traffic to Pinball or to Web Publisher Site by any type of automatic installs, browser exploits, viruses, bots, rootkits, or by any other means, even if otherwise legitimate. Web Publisher shall not use false advertising or other deceptive or inappropriate means to generate installs.
- No P2P Distribution of .EXE files, applications.
- Web Publisher shall not, directly or indirectly, promote, advertise, market, sell, bundle, or distribute in any form any executable file or application (e.g., screensavers or downloadable games) in, on, or via P2P or P2P networks. Media files (e.g., videos) are generally not considered an executable file or application.
- Web Publisher will perform its obligations pursuant to this Code of Conduct in accordance with all applicable laws, rules, regulations and requirements. Without limiting the generality of the foregoing, Web Publisher will: (a) not engage in any unfair or deceptive trade practice involving the promotion or distribution of the Products; (b) not include on any Web Publisher Site any content or material that in Pinball’s sole discretion (i) is defamatory, libelous, slanderous or offensive, or that abuses or threatens physical harm to others, (ii) is offensive, insensitive or disparaging regarding racial, ethnic, or political matters or is otherwise objectionable, or (iii) infringes the rights of any party or any law, regulation or legal authority including, without limitation, rights of publicity or privacy; (c) not make any false, misleading or disparaging representations or statements with regard to the Products or Pinball or Pinball’s employees; and (d) not infringe, misappropriate or violate any Proprietary Rights of Pinball or any third party.
- Web Publisher Responsibility.
- Web Publisher is solely responsible for any Web Publisher Site(s) and all content that appears on and any collection of information by Web Publisher on Web Publisher Site(s). Web Publisher may use or display Pinball materials only in the size, place and manner Pinball may indicate within Web Publisher Site(s) and only in a manner that complies in all respects with Pinball's guidelines, as the same may be modified from time to time by Pinball in its sole discretion. In addition, Web Publisher will ensure that appropriate messaging and EULA acceptance precedes every installation of a Product and every other product that is bundled with a Product.
- Violations of Code of Conduct—Disgorgement of Profits and Liquidated Damages.
- If Pinball determines that Web Publisher is in violation of any of the terms and conditions of this Code of Conduct, in Pinball’s sole discretion, then Pinball shall notify Web Publisher and immediately suspend the Web Publisher’s Account. Web Publisher agrees that it will immediately and permanently end the activity that violates the Code of Conduct and make reasonable efforts to implement the corrective action steps, if any, outlined by Pinball. The Account will be terminated for any prohibited activities. Such activities include, but are not limited to, the following:
- a) spam;
- b) deception;
- c) promotion of a Trojan, security exploit, or illegal content; and/or
- d) any violation of the TRUSTe Trusted Download Program Certification Agreement Prohibited Activities (http://www.truste.org/pdf/Trusted_Download_Certification_Agreement.pdf at Section 14 of Schedule A).
In the event of such activity, Pinball will withhold payment and Web Publisher shall be subject to liquidated damages as set forth in the immediately following paragraph. If Pinball has already paid Web Publisher but would have withheld payment, Web Publisher agrees to refund all such amounts to Pinball within three (3) business days after Pinball sends notice to Web Publisher and Web Publisher shall still remain subject to the liquidated damages set forth in the immediately following paragraph. The foregoing shall in no way limit the legal or equitable rights or remedies available to Pinball in connection with a violation of the above requirements, or otherwise, including referral by Pinball of suspected illegal activity to law enforcement. A terminated account may be reactivated only with the approval of Pinball’s fraud response team following receipt of sufficient evidence to clear Web Publisher of wrongdoing. Repeat violators will not be reactivated.
The parties agree that strict compliance with the terms and conditions of this Code of Conduct is at the essence of the relationship between Web Publisher and Pinball. The parties further agree that damages from breach of this Code of Conduct may be difficult to calculate. Accordingly, the parties agree, in addition to any indemnification or refund obligations herein (and without limitation to any other legal or equitable rights or remedies) to liquidated damages calculated as follows: two times (2x) the amount equal to what Pinball did pay or would have paid Web Publisher if the installs had been proper.
Indemnification for Violations of the Code of Conduct. If any claim is made, or any action or proceeding is instituted, against Pinball that alleges or is based upon or arises out of Web Publisher’s breach of any representation, warranty or obligation arising under this Code of Conduct, Web Publisher shall indemnify and hold Pinball harmless from all damages, awards, costs and expenses (including reasonable attorneys’ fees) associated therewith. Such indemnity is in addition to any other indemnity (either in the Web Publisher Agreement or otherwise) made by Web Publisher.
- Pinball reserves the right to change the terms of this Code of Conduct at any time without notice to Web Publisher and, by continuing to participate as a Pinball partner, Web Publisher agrees to be bound by such revised terms. Pinball will post those changes on the Code of Conduct page of the applicable website. Web Publisher’s continued participation as a Pinball partner following the posting of such changes to the Code of Conduct will constitute Web Publisher’s acceptance of any such changes.
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