Terms of Service
Last Updated September 1, 2011
The following terms and conditions (hereinafter, “Terms and Conditions”) apply to and is hereby incorporated into any agreement between Volume11 Media Inc (“Volume11″) and an application developer or publisher (“Developer”) whereby such Developer is to deliver advertisements provided by Volume11 in connection with the Volume11 Service (hereinafter, “Agreement”), unless the parties have entered into a separate written agreement. All other parties who access Volume11’s website, use the Volume11 Service, and/or access Volume11’s servers, including but not limited to social network services, are bound by separate terms and conditions that can be found here.
1. Introduction. Pursuant to each Agreement, Developer will deliver the advertisements provided by Volume11 (the “Advertisements”) to Developer’s site(s) (the “Site”) for the benefit of the Developer in connection with Volume11’s consumer-to-consumer advertising service (the “Volume11 Service”).
2. Advertisement Specifications; Implementation. Developer agrees to comply with and deliver all Advertisements in accordance with the Agreement, including any placement requirements and technical specifications provided by Volume11 to enable proper display of such Advertisements on a reasonably balanced delivery schedule. Any exceptions must be approved by Volume11 in writing or email communication. Developer will be solely responsible for any and all costs Developer incurs for the delivery of the Advertisements in accordance with such specifications and for any programming related to the same which Developer elects to undertake.
3. Terms of Payment. Volume11 shall pay Developer the revenue share set forth in the Agreement, due and payable as indicated therein. Developer shall be solely responsible for the payment of, and shall pay when due and indemnify Volume11 against, all applicable federal, state and local taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Developer under this Agreement (except for taxes assessed on Volume11’s net income).
4. Fraud. Volume11 will not be obligated to pay for any fraudulent Actions (as defined in the Agreement) generated by any person, bot, automated program or similar device in connection with any Advertisements provided by Volume11, as reasonably determined by Volume11, provided that Volume11 provides reasonable documentation to Developer with respect thereto.
5. Reporting. Developer will provide electronic or written confirmation to Volume11, within two (2) business days of the start date on the Agreement, that Developer has initiated delivery of the Advertisements specified in the Agreement.
6. Content. Volume11 agrees not to transmit any Advertisement to Developer that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene. Developer may also request that Volume11 block Advertisements from a list of specified domain names (each, a “Blocked Domain”) attached as an appendix to the Agreement, which list may be updated by Developer only upon Volume11’s prior written approval. Volume11 will use commercially reasonable efforts to block Advertisements from Blocked Domains from the collection of Advertisements provided to Developer for display at the Site.
7. Compliance with Laws. Developer agrees that it will deliver the Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Developer’s country of residence. Developer will not, will not agree to, and will not authorize or encourage any third party to (a) interfere or attempt to interfere with the proper working of the Volume11 Service or prevent others from using the Volume11 Service; or (b) use the Volume11 Service for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Volume11’s sole discretion, and may subject Developer to state and federal penalties and other legal consequences. Volume11 reserves the right, but will have no obligation, to review Developer’s display of Advertisements and use of the Volume11 Service in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
8. Representations and Warranties. Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
9. Indemnification. Each party agrees to indemnify and hold the other party and its affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys fees, arising out of the breach of the representations, warranties and covenants made by such party herein. Volume11 reserves the right, at Developer’s expense, to assume the exclusive defense and control of any matter for which Developer is required to indemnify Volume11 and Developer agrees to cooperate with Volume11 on such claims.
10. Disclaimers; No Warranties. VOLUME11 MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, VOLUME11 MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE VOLUME11 SERVICE. VOLUME11 DOES NOT WARRANT THE RESULTS OF USE OF THE VOLUME11 SERVICE, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND DEVELOPER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
11. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL VOLUME11 OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF VOLUME11 OR A VOLUME11 AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VOLUME11′S OR ITS AFFILIATES TOTAL LIABILITY TO DEVELOPER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE NET VALUE OF ACTIONS ACTUALLY DELIVERED BY DEVELOPER PURSUANT TO THE AGREEMENT TO WHICH THE CLAIM RELATES.
12. Ownership. Developer acknowledges that Volume11 will provide third-party advertisements using its Volume11 Service for display on the Site pursuant to this Agreement, and Developer will use commercially reasonable efforts to assist Volume11 in implementing such technology. Developer agrees that it will use any information or technology provided by Volume11 to Developer only for the purpose of providing Advertisements for Volume11 on the Site as set forth in this Agreement. Volume11 will own and retain all rights, title, and interest in and to the Volume11 Service (except for any licensed content and third-party Advertisements included therein), including all software and data related thereto. Developer acknowledges that the software and data related to the Volume11 Service (including, without limitation, any usage data or compilations thereof) are copyrighted by Volume11 and may contain trade secrets or other intellectual property owned by Volume11. Developer agrees not to copy, alter, modify, or create derivative works of the Volume11 Service or otherwise use the Volume11 Service in any way that violates the use restrictions contained in this Agreement. Volume11 does not grant to Developer any license, express or implied, to the intellectual property of Volume11 or its licensors.
13. Confidentiality. “Confidential Information” shall mean (a) the Advertisements, prior to publication; (b) the existence or content of this Agreement; (c) any statistics or other data relating to the Volume11 Service; and/or (d) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreement, and for a period of two (2) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
14. Term; Termination. Volume11 or Developer may terminate this Agreement at any time upon seven (7) days prior written notice. Notwithstanding the foregoing, in the event of a material breach by Developer, Volume11 may terminate this Agreement immediately without notice or cure period. In the event of any termination, Volume11 will remain liable for any amount due and such obligation to pay shall survive any termination of this Agreement.
15. Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Developer, but may be assigned by Volume11 without restriction. Volume11 and Developer are independent contractors, and neither Volume11 nor Developer is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between Volume11 and Developer, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. Any dispute hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Developer agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the Superior Court of California for the County of Contra Costa. Developer hereby consents and submits to the personal and exclusive jurisdiction of such court for the purposes of litigating any such action. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be sent to the addresses set forth in this Agreement (or in a separate writing) by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
16. Gambling; Adult Related Content. The Volume11 Service is NOT available to any partners for the use of gambling that violates national or state law or for any adult related content.