NOTICE: In accordance with the terms of this Web Publisher Agreement (“Agreement”), please note that, effective immediately, all previous versions of the Agreement are terminated, null, of no effect and are replaced by this version dated July 14, 2009. Pinball Corporation ("Pinball") reserves the right to change the terms of this Agreement at any time without notice to Web Publisher and, by continuing to participate hereunder, Web Publisher agrees to be bound by such revised terms.
During the term of this Agreement and upon Web Publisher agreeing to the terms and conditions of this Agreement by completing the on-line registration form, Pinballhereby grants to Web Publisher the limited, non-exclusive license to use Hotbar, the Seekmo Search Assistant, and the Tools as set forth in the applicable "Additional Terms" attached hereto as Exhibit A. Web Publisher shall provide the services as described in the Additional Terms. Pinball will provide Web Publisher with code or web pages for use on Web Publisher Site(s) to enable Users to access, download and install Products from Pinball. Web Publisher shall not modify the Tools, which are licensed to Web Publisher as set forth in the Additional Terms. Web Publisher may not reference Pinball, its directors or its parent or subsidiary companies without first receiving written consent from Pinball. Web Publisher may not issue any press release or other public statements regarding this Agreement without Pinball’s prior written consent.
All Products are subject to one or more End User License Agreements. Web Publisher shall not take any action to interfere with, and shall provide reasonable cooperation with respect to implementing, the process pursuant to which Users are presented with and given an opportunity to agree to the applicable End User License Agreement(s). Web Publisher will not make or authorize any representation, warranty, term, condition or other provision relating to a Product that has not been approved or otherwise authorized by Pinball in writing.
Web Publisher shall not, directly or indirectly, promote, advertise market, sell, bundle, or distribute in any form any software or product that competes with Hotbar, the Seekmo Search Assistant, or any Product during the Term and for a period of 60 days after this Agreement is terminated.
Web Publisher agrees to be bound by the Pinball code of conduct set forth on Pinball’s website (the “Code of Conduct”), which is incorporated in its entirety in this Agreement by this reference. Web Publisher further acknowledges that such Code of Conduct may be revised and updated from time to time and that by continuing to participate hereunder after such changes are posted and made available to the general public, Web Publisher explicitly agrees to be bound by such changes.
Web Publisher agrees to use the English language for all text and documentation associated with the Products.
During the Term, Pinball will pay Web Publisher the fees set forth in the Additional Terms. Pinball will be entitled to withhold, deduct and set off from any payments to be made to Web Publisher hereunder any sums owed by Web Publisher to Pinball in connection with this Agreement (including any breach hereof by Web Publisher) or otherwise. Web Publisher is responsible for keeping its payment information up to date. Payments will be sent with the payment information located in the Partners Area at the time the pay period ends. No payment information change will be accepted between the end of the pay period and the time the payment is sent. Future payments will take account of any changes made during that period. Web Publisher is required to have a verified PayPal account unless payment is to be made via check or wire transfer and the Web Publisher is otherwise in good standing and is a resident in the United States, Canada, France, Italy, Germany, Spain, Israel, or Australia (final determination of good standing at Pinball’s sole discretion). For the additional protection of the Web Publisher, or any other reason, Pinball may at any time request additional and further proof of identification from Web Publisher, and payment may be withheld until identification can be verified (or re-verified).
Subject to any license granted herein, Pinball owns and retains all rights, including Proprietary Rights, in and to the Tools and Products. All rights not expressly licensed hereunder are expressly reserved by Pinball. Web Publisher shall use the Tools and Products only as provided herein, and shall not alter the Tools or Products in any way, nor shall it act or permit action that would in any way impair the rights of Pinball in the Tools or Products. Web Publisher acknowledges that its use of the Tools and Products shall not create any right, title or interest in or to such Tools and Products and all goodwill or reputation generated by Web Publisher’s use shall inure to the benefit of Pinball. Pinball shall have the right to monitor the quality of the Web Publisher’s use of the Tools and Products. Web Publisher agrees not to contest, in any court or other jurisdiction, the validity of any of the Tools. During the term of this Agreement, Web Publisher shall not adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of Pinball’s trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction. Web Publisher shall notify Pinball promptly in writing of any known infringement of the Pinball Proprietary Rights or other rights in the Tools or Products. As between Pinball and Web Publisher, Pinball is and shall be the sole and exclusive owner of User Information collected through the Products.
The term of this Agreement shall commence on the date Pinball receives Web Publisher's on line registration and shall continue in force thereafter, unless earlier terminated as provided herein. If Web Publisher breaches this Agreement, or if Web Publisher engages in any action that, in Pinball's sole discretion, reflects poorly on Pinball or its trademarks, service marks, trade name or reputation, Pinball may terminate this Agreement immediately upon notice to Web Publisher. Either party may terminate this Agreement on thirty (30) days written notice to the other party for any reason. Upon the termination of this Agreement for any reason, all license rights granted herein shall terminate immediately, and Web Publisher shall immediately cease use of the Tools and Products.
Pinball reserves the right to terminate any account inactive for more than 30 calendar days.
During the Term of this Agreement and thereafter, Web Publisher agrees that it will not disclose or use the "Confidential Information" (defined below) of Pinball other than as reasonably necessary to carry out the obligations contemplated by this Agreement. Confidential Information is information that has or could have commercial value or other utility in the business or prospective business of Pinball, or information that Web Publisher ought to, in good faith from the circumstances of its disclosure, consider to be confidential. Confidential Information includes but is not limited to all Proprietary Rights of Pinball and all other business, technical and financial information that is obtained from Pinball pursuant to this Agreement. Confidential information shall not include any information that Web Publisher can verify with substantial proof: (i) is generally available or known to the public through no wrongful act of Web Publisher; (ii) was independently developed by Web Publisher without use of Confidential Information; or (iii) was disclosed to Web Publisher by a third party under no obligation of confidentiality to Pinball.
Web Publisher represents and warrants that (a) Web Publisher is 18 years or older and has full power and authority to enter into this Agreement; (b) the content on Web Publisher's Site(s), and/or the technology and/or content (including, without limitation all images, photographs, closed captioning, data and music) used by Web Publisher in connection with this Agreement is and will continue during the term hereof to be owned or legally licensed for use as contemplated by this Agreement by Web Publisher; (c) Web Publisher Site(s) do not violate applicable law or regulations, including without limitation 18 USC 2257, other US Federal and State Laws, and do not infringe or violate any copyright, patent, trademark or other similar proprietary right, or otherwise violate or breach any duty toward, or rights of, any person or entity, including without limitation rights of publicity or property, or rights or duties under consumer protection, criminal law, product liability, tort or contract theories and (d) the content on Web Publisher’s Site(s) does not violate the Canadian Criminal Code provisions in relation to child pornography or obscenity.
WEB PUBLISHER ACKNOWLEDGES THAT THE TOOLS AND PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS." NEITHER PINBALL NOR ANY OF ITS SUPPLIERS WILL HAVE ANY LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN ANY PRODUCT, ANY INABILITY TO USE A TOOL OR PRODUCT OR ANY LOSS OF DATA. PINBALL MAKES NO WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE TOOLS OR PRODUCTS, THEIR PERFORMANCE OR SUITABILITY FOR INTENDED USE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
NEITHER PINBALL NOR ANY OF ITS SUPPLIERS WILL HAVE ANY, AND WEB PUBLISHER EXPLICITLY RELEASES PINBALL AND ALL OF ITS SUPPLIERS FROM, LIABILITY RELATED TO OR ARISING UNDER THIS AGREEMENT (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA OR PROFITS, EVEN IF PINBALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PINBALL’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY PINBALL TO WEB PUBLISHER FOR THE 6 MONTHS PRECEDING ANY CLAIM.
In the event of a dispute relating to this Agreement that cannot reasonably be resolved between the parties, the parties agree to submit their dispute to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. pursuant to its Comprehensive Arbitration Rules and Procedure. Such arbitration shall be held in San Francisco, California. The existence, content and result of such arbitration shall be held in confidence.
Waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other breach or right. If any provision of this Agreement is held invalid or unenforceable, such language shall be removed to the minimum extent necessary, taking into account the intent of the provision, and the remaining provisions will continue in full force and effect.
Neither party shall assign this Agreement or any of its rights under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. Notwithstanding anything in this agreement to the contrary, Pinball may assign this contract to a wholly owned subsidiary or upon a corporate reorganization without notice or consent.
In the event of a dispute, the substantially prevailing party is entitled to recover all reasonable legal fees and costs.
Pinball may disclose information related to Web Publisher as it believes is reasonably necessary to comply with law enforcement, regulatory or other governmental authority, to prevent harm to Web Publisher or others, or in the event of a breach of this Agreement. In the event of a breach of this Agreement, including the Code of Conduct, Pinball reserves the right to disclose Web Publisher information to law enforcement authorities and other regulatory bodies.
Notices, demands and other communications shall be in writing and sent to, as applicable, the address of Web Publisher provided by Web Publisher to Pinball during the on-line registration process and the address of Pinball as set forth on Pinball’s website, and shall be deemed to have been properly given:
Web Publisher shall not, directly or indirectly, export or re-export any Product from the United States without compliance with all applicable laws and regulations of the United States Office of Export Licensing or its successor.
Web Publisher shall defend, indemnify and hold harmless Pinball, its affiliates and their respective officers, directors, employees, agents, successors, licensees, attorneys, suppliers and assigns, and each of them, from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties arising from (a) Web Publisher’s breach of this Agreement and/or the Code of Conduct; (b) Web Publisher’s negligence or willful misconduct; or (c) Web Publisher’s own technology, business and Site(s).
This Agreement shall be construed, controlled and governed by the laws of the State of California, without regard to conflicts of law principles or provisions. Web Publisher hereby irrevocably consents to and submits to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California.
There is no relationship of agency, partnership, joint venture or employment between the parties. Neither party has the authority to bind the other nor to incur any obligation on the other’s behalf except as may otherwise be described in this Agreement.
This Agreement is the complete agreement between the parties, and supersedes all previous agreements, proposals and communications, written and oral, with respect to this subject matter. No amendment, modification or waiver of any of the provisions of this Agreement will be valid unless set forth in a writing signed by the parties to be bound thereby. The foregoing notwithstanding, if a revised, updated version of this Agreement is posted online by Pinball, and Web Publisher continues to participate in Pinball’s Web Publisher program, then Web Publisher is thereby agreeing to be bound by such revised terms.
Web Publisher shall provide the possibility to install the Products from Web Publisher Site(s) to end-users of Web Publisher's Site(s) only and not to subdistributors or any other third parties.
Pinball will pay Web Publisher a commission based on User installations performed through the Web Publisher ID, according to the rate sheet posted on Pinball’s website at the time of installation by User.
Pinball pays on valid installations coming from the countries listed in Pinball’s rate sheet. However, Pinball reserves the right not to pay for unprofitable installations.
Pinball will issue payment once Web Publisher's account balance has reached fifty United States dollars (US $50.00). The minimum amount for sending a wire transfer is one thousand United States dollars (US $1000.00). If the amount is less, it is carried over from month to month until Web Publisher has accrued the minimum payout.
Payments are sent NET 30 (thirty days) after the end of the pay period, as determined during the on line sign-up process. Payment is equal to the total showed in Web Publisher's account, less any taxes or fees Pinball may be required to withhold, and less any amount Pinball determines, in its sole discretion, was not validly earned from proper use of the Tools, including use of the Tools on Web Publisher's Site.
Pinball agrees to pay a referral bonus to Web Publisher for all installations sent by Referred Web Publisher. The referral bonus is equal to a percentage of the Referred Web Publisher’s net revenue, based on the CPA pricing as listed in Pinball’s posted rate sheet. Such referral bonus shall be paid at the percentage as indicated in the referral bonus section of Pinball’s website, as posted at the time of installation by User.
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