Publisher Agreement
Effective July 5, 2022
VEERUS IS WILLING TO LICENSE OR ALLOW THE USE OF THE WEBSITES AND THE RELATED SERVICES AND MATERIALS TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT. BY USING THE WEBSITES, YOU EXPRESSLY ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY ALL THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE WITH THE ENTIRETY OF THESE TERMS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR USE THIS WEBSITES AND/OR THE SERVICES AND MATERIALS, AND YOU ARE HEREBY INSTRUCTED TO EXIT THE WEBSITES IMMEDIATELY.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
YOU ACCEPT THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT IN FULL IF YOU USE THE WEBSITES. IF YOU DO NOT ACCEPT THIS AGREEMENT AND OTHER POSTED POLICIES THEN DO NOT USE THE WEBSITES AND DO NOT PROVIDE ANY INFORMATION TO THE WEBSITES.
This Publisher Agreement (“Agreement”) is entered into by and between VEERUS HOLDINGS, LLC ("VEERUS") and you, the Publisher (“you” or “Publisher”), to establish the terms and conditions by which you may market advertisements for products and/or services through the placement of Ads (defined below) on behalf of VEERUS or its Advertisers. In consideration of the mutual promises and covenants set forth herein, VEERUS and Publisher agree to be legally bound as follows:
1. Definitions.
"Ad" or "Creative" means the graphic or text file(s) made available to Publisher in connection with its performance under this Agreement. Ads or Creative may be in the form of banners, text links, transactional ads, email, or other electronic promotions approved by VEERUS. "Advertiser" means VEERUS and/or the advertiser or advertising agency providing Ads to VEERUS for use by Publisher. "Click” or "Click-Through" means the activation of a hyperlink using a mouse or other input device as measured by VEERUS. "Flight Dates" means the time period, and associated start and end dates, over which an Ad runs. "VEERUS Code" means code, links, tags, pixels or other computer code provided by VEERUS for use by Publisher. "IP" means the Ads, VEERUS Code and/or other intellectual property made available to Publisher in connection with its performance under this Agreement. "Publisher Media" means the website(s), search engine(s) or other electronic media on which Publisher or a Sub-Publisher places Ads. "Unit" means a User's completion of the act requested by VEERUS or its Advertiser, as measured by VEERUS. If a User is directly compensated for completing such required action, such action is not considered a Unit. "User" means any person accessing Publisher's Media.
2. VEERUS’s Network.
VEERUS reserves the right to (i) refuse service to any new or existing Publisher, and/or (ii) reject, omit or exclude any Publisher or Publisher Media for any reason at any time with or without notice in its sole discretion and without liability. Publisher Networks. Any Publisher that consists of an aggregation of publishing affiliates (collectively, a "Publisher Network," representing one or more "Sub-Publishers"), hereby agrees to the following terms and conditions: (a) Publisher Network shall report to VEERUS a unique sub-ID for each Sub-Publisher, which shall not be rotated, altered or reused by Publisher Network in any way; (b) In the event of a dispute, complaint, or legal or regulatory issue, Publisher Network shall provide VEERUS with contact information that includes without limitation, contact name, mailing address, telephone number, and email address, for any Sub-Publisher within 24 hours of VEERUS's request; (c) Within 24 hours of VEERUS's request, Publisher Network shall remove any Sub-Publisher from VEERUS's and/or its Advertisers' campaign(s) and ensure that the Sub-Publisher(s) does not obtain any Ad from or through Publisher Network in the future; and (d) Publisher Network shall be responsible and liable for each Sub-Publisher's conduct and compliance under this Agreement. Nothing in VEERUS’s permission to engage Sub-Publishers shall be construed as extending to any Sub-Publisher the status of third party beneficiary of any agreement between VEERUS and Publisher, including without limitation this Agreement. During the term of this Agreement and for one (1) year thereafter, Publisher and its Sub-Publishers shall not knowingly solicit any Advertiser, Publisher, or email provider that works with VEERUS or is a part of VEERUS’s network. In the event Publisher does so, the parties agree that monetary damages may not be adequate and that VEERUS shall be entitled to seek injunctive relief without the necessity of posting a bond or other security. Sharing of Publisher Information. VEERUS may provide Publisher and/or Sub-Publisher information, including but not limited to application information, contact information, account information, Unit information, and statistics to: (a) Advertisers in response to their request or in the event of a dispute; (b) law enforcement officials or governmental agencies in response to their request, when permitted or required by law or to establish VEERUS's compliance with applicable laws, rules, regulations, or guidelines; and/or (c) third parties when trying to protect against or prevent actual or potential fraud or unauthorized transactions, investigating fraud that has already taken place, enforcing or applying existing terms and conditions and/or other agreements, protecting the rights, property or safety of VEERUS, Users or others, or responding to subpoenas, court orders or legal process, or to establish or exercise legal rights or defend against legal claims.
3. Publisher Requirements.
Publisher agrees to undertake and complete the services as specified by VEERUS, including complying with all Ad placement instructions and restrictions provided by VEERUS from time to time, including but not limited to those provided via email or through VEERUS’s publisher portal. VEERUS reserves the right to pay Publisher only for valid Units delivered (i) in accordance with this Agreement and VEERUS’s instructions and restrictions, (ii) through approved Creative, and (iii) within the applicable Flight Dates and Unit limitations. IT IS PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE ADS WITHIN ITS MEDIA WHEN AN AD IS NO LONGER MADE AVAILABLE BY VEERUS OR HAS NO UNITS REMAINING FOR DELIVERY. Publisher shall not induce Users to provide their information through the use of incentives, including but not limited to sweepstakes entries, rewards, points, or other compensation to be earned in connection with generating Units. Unless otherwise specified in writing by VEERUS, Publisher shall only market to and supply U.S. Users who are 18 years of age or older.
4. Ad Placement.
Publisher and its Sub-Publishers shall not: (a) except as expressly permitted under this Agreement, alter, modify, copy, take, sell, re-use, or divulge in any manner any Ad, VEERUS Code or IP provided or made available by VEERUS or its Advertiser without VEERUS's prior written consent; (b) copy any Ad and display it directly from Publisher Media; (c) redirect traffic to a website other than that specified by VEERUS or its Advertiser; (d) ask Users to take advantage of Ads or offers other than those specified by VEERUS or the applicable Advertiser; (e) use any invisible method to generate Units or transactions that are not initiated by the affirmative action of a real, live User; (f) alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source code, links, pixels, modules, or other data provided by or obtained from VEERUS that allows VEERUS to measure Ad performance or Units or provide its services; (g) block, mask or alter a referring URL; (h) run any Ad after the specified end date or after the Unit cap has been satisfied; (i) run any Ad after VEERUS has posted new Creative to run in lieu of such Ad; (j) generate Units by: (1) auto spawning browsers, automatically redirecting Users, or any other technique of generating "automated" actions; (2) falsely or fraudulently generating User data or Units; (3) posting User data that is older than 48 hours; or (4) utilizing content gateways (including but not limited to those leading to websites containing pirated music or movies) or requiring Users to click on an Ad before entering any area of a website. Publisher agrees that all Click-Throughs must: (a) go through VEERUS's unique gateway; and (b) be recorded by VEERUS's server. Publisher and its Sub-Publishers shall not modify any Creative or utilize any Creative that is not available through VEERUS. Publisher may submit creative materials to VEERUS for review, approval and inclusion by VEERUS for Publisher's use by submitting them to VEERUS. Each Ad may only run on the URLs approved by VEERUS. If any other URL is used, specific written authorization must be given prior to placement of the URL. Violation of this rule may result in loss of all revenue associated with such activity. Publisher and its Sub-Publishers shall not place any Ad, VEERUS Code or IP on any website that contains, promotes or has links to: (a) a blank web page or web page with no content; (b) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other material deemed unlawful, unsuitable or harmful to the reputation of VEERUS and/or its Advertisers; (c) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal file sharing activity; (d) illegal activities or advice; (e) misleading or deceptive acts or practices; (f) violations of the intellectual property or privacy rights of others; (g) personal web pages, non-English language pages, free hosted pages, or websites under construction; (h) charity clicks/donations, paid to surf, Active X downloads, or all affiliate links; (i) fake news sites, blogs or “flogs”; and/or (j) activities generally understood as abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, "Spyware" shall mean computer programs or tools that: (1) alter a computer User's browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent from the User; (2) prevent a computer User's reasonable efforts to block the installation of or disable or remove unwanted software; (3) remove or disable any security, anti-Spyware or anti-virus technology on a User's computer; (4) send email through a User's computer without prior authorization; (5) open multiple, sequential, stand-alone advertisements in the User's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer; or (6) other similar activities that are prohibited by applicable law. Further, Publisher and its Sub-Publishers shall not abuse MySpace, Craigslist, Facebook, Twitter, or other similar websites or social media to drive traffic to any Ad. For purposes hereof, "abuse" shall mean sending any unsolicited mass mailing or instant messages, making any automated use of the systems, such as using scripts or applications to send bulletins, other communications or generate wall posts, or any other activity that violates the MySpace Terms of Use Agreement, Craigslist Terms of Use, Facebook Terms of Use, Twitter Terms of Service, or terms of use for any other website or service. No Text Messaging. The sending of text messages in any form is strictly prohibited. VEERUS will not pay for any traffic generated through the use of text messaging. No Canadian Traffic. Marketing efforts targeting Canadian residents or devices, or deployed from Canadian servers are prohibited. This includes email, instant messages, text messages, social media communications, and any other type of commercial electronic message. Publisher represents and warrants that no Ad will be delivered or promoted to: (a) any records including an IP identified as geographically associated with Canada; (b) any records collected from a Canadian website; (c) any records collected from or associated with Canadian residents or devices; and/or (d) any email records utilizing Canada’s country code, .ca. Search Campaigns. Publisher and its sub-Publishers shall not: (a) violate the terms of use of any search engine; (b) engage in search engine spam, doorway pages, cloaking, etc.; (c) bid on any trademarked name or term in any pay per click/"keyword"/"adword"/campaign; or (d) conduct search ads falsely suggesting a link between VEERUS and a third party or otherwise infringing on a third party's intellectual property or privacy rights. Email Campaigns. Email campaigns may only be performed by Publisher or its Sub-Publishers if approved in writing by VEERUS and any approval may be revoked at any time. Publisher represents and warrants that: (a) All email Ads delivered under this Agreement will be to lists that were compiled without using any deceptive or unlawful act or practice; (b) Publisher and its Sub-Publishers shall maintain at all times during the term of this Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration data for every email address to which an Ad is sent; (c) Within one (1) business day of VEERUS's request, Publisher shall provide, at a minimum, the following subscriber sign-up/registration data: (i) email address used to sign-up/register for the applicable list; (ii) date and time of subscriber's sign-up/registration for the applicable list; (iii) subscriber’s IP address; (iv) location (URL) of subscriber's sign-up/registration; and (v) the privacy policy under which the email address and associated information was collected; (d) Prior to sending any email Ad to its subscribers under this Agreement, Publisher and its Sub-Publishers shall download the applicable suppression file for the campaign and "scrub" their email list(s) against the file. Neither Publisher nor any Sub-Publisher shall use any suppression file for any other purpose or permit, through act or omission, any third party to do so; (e) Publisher and its Sub-Publishers shall comply with all applicable international and United States federal, state, and local laws, rules and regulations governing commercial email, including but not limited to the CAN-SPAM Act of 2003 and corresponding amendments and rules, the California Business and Professions Code, and any applicable state consumer protection or registry laws, such as the Michigan Children's Protection Registry and the Utah Child Protection Registry; (f) Publisher and its Sub-Publishers shall not use email to promote any campaign for which email marketing is prohibited and shall use only approved email Creative and subject lines provided or made available by VEERUS; (g) Any and all email Ads sent by Publisher and/or its Sub-Publishers shall include: (1) a clear and conspicuous identification that the message is an advertisement; (2) a functioning return electronic mail address; (3) clear and conspicuous Internet-based opt-out mechanisms for the Advertiser and Publisher or Sub-Publisher that function for at least 30 days after the transmission of the message; and (4) valid physical postal addresses for the Advertiser and Publisher or Sub-Publisher; (h) Publisher and its Sub-Publishers shall allow Users to opt-out without requiring payment, information beyond a User's email address or any other obligation as a condition for accepting or honoring a User's opt-out request, including but not limited to requiring a User to visit more than a single Internet web page, and they shall honor all opt-out requests within ten (10) business days of receipt; (i) Publisher and its Sub-Publishers shall not sell, lease, exchange, or otherwise transfer or release any email address for which an opt-out request has been received; (j) Publisher and its Sub-Publishers shall not send any email Ads with false, deceptive or misleading header information (source, destination and routing information), subject lines or from lines; (k) Publisher and its Sub-Publishers shall accurately identify themselves as the initiator of the email in the "from" line. Publisher and its Sub-Publishers shall not, for example: (1) use VEERUS’s name or a brand name in the from line; (2) use a celebrity’s name in the from line; (3) send email "from" individuals that do not exist or are not actually involved in sending the email; or (4) send, or otherwise indicate an email is "from", a group or department that does not exist; (l) all mailing domains shall be publicly registered, and shall not be registered by proxy. Publisher and its Sub-Publishers shall provide the WHOIS database with true and correct information, such that the domain name in the "from" and "reply-to" headers of each email identify Publisher or the applicable Sub-Publisher via a WHOIS database search. Publisher and its Sub-Publishers shall not use WHOIS Guard or a similar technology which masks the identity of a mailer in connection with its performance of this Agreement; (m) Publisher and its Sub-Publishers shall not pre-date or post-date emails; (n) Publisher and its Sub-Publishers shall scrub their email lists against the FCC’s list of wireless domains at least once every 30 days; (o) Publisher and its Sub-Publishers shall only send to United States email addresses for which a message to such address would not constitute a mobile service message as defined by the CAN-SPAM Act of 2003; and (p) Publisher and its Sub-Publishers shall not send any Ads via newsletters or other emails having multiple advertisers. VEERUS may take steps to monitor Publisher’s compliance with this provision and reserves the right to take any action it deems necessary in the event of a failure to comply, including but not limited to issuing a warning, suspending or terminating Publisher’s account, withholding payment, and/or terminating this Agreement.
5. License.
VEERUS hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use and display the Ads, VEERUS Code and IP solely for the purpose of performing its obligations under this Agreement and subject to the terms of this Agreement. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as VEERUS granting Publisher or any Sub-Publisher any right, title or interest in any Ad, VEERUS Code or IP. Publisher acknowledges and agrees that VEERUS and/or its Advertiser owns all right, title and interest in and to the Ads, VEERUS Code and IP and all related intellectual and proprietary rights of any kind anywhere in the world.
6. Payment.
VEERUS reserves the right to set campaign rates, which vary with market conditions. Publisher will be paid as set forth in an VEERUS Insertion Order, an email to Publisher, or online within the VEERUS publisher portal. Payment will be made by VEERUS to Publisher within thirty (30) days from the end of each month or as otherwise provided in a VEERUS Insertion Order. All billing will be based on VEERUS’s calculations. Invoices must be received by VEERUS within ninety (90) days after the commencement of the activity to which such invoice relates. VEERUS will not be held responsible for invoices received past such date. Invoices must be emailed to info@VEERUS.com. All accounts will be settled in U.S. dollars. No payment will be issued for any amount less than $50. If, in VEERUS's opinion, Publisher violates this Agreement, refuses to fulfill its responsibilities or commits fraudulent activity, VEERUS reserves the right to withhold payment and/or take appropriate legal action. VEERUS will not compensate Publisher for Units or data that have been determined by VEERUS or an Advertiser, in VEERUS’ sole discretion, to be subject to rejection for any reason, including but not limited to duplicates, invalid data, incomplete data, data of low quality, fraudulent data, or data generated by unapproved placements or traffic sources. In the event that Publisher has already received payment for such Units or data, VEERUS reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Publisher and VEERUS acknowledge that any Units or data rejected may be retained and marketed to by the Advertiser and/or VEERUS, to the extent possible. Calculation of Publisher earnings shall be in VEERUS's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall, within fifteen (15) days of receipt of such calculation, send a written request to VEERUS detailing, with specificity, Publisher's concerns. Thereafter, VEERUS will provide Publisher with an explanation or, if such calculation is determined by VEERUS to be incorrect, an adjustment. In all cases, VEERUS's calculations shall be final and binding.
7. Data Ownership; Audit; and Compliance with California Privacy Laws
Publisher understands and agrees that all Units and data, including but not limited to personally identifiable information provided by Users in response to an Ad and any and all reports, results, and/or information created, compiled, analyzed, or derived by VEERUS from such data is the sole and exclusive property of Advertiser and/or VEERUS and is considered Confidential Information (as defined below) pursuant to this Agreement. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, license, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party. Specifically, with regard to personal information subject to the California Consumer Privacy Act (“CCPA”) or the California Privacy Rights Act (“CPRA”), Publisher and Sub-Publishers shall not (i) sell such personal information; (ii) retain, use, or disclose such personal information for any purpose other than for the specific purpose of performing under this Agreement; (iii) retain, use, or disclose the personal information for a commercial purpose other than performing under this Agreement; or (iv) retain, use, or disclose the personal information outside of the direct business relationship between Publisher and VEERUS. Publisher expressly certifies that it understands these restrictions on the use of personal information and will comply with them. Publisher agrees that at all times during the term of this Agreement and for one (1) year thereafter, it shall maintain accurate books and records relating to its performance under this Agreement, including books and records relating to its Sub-Publishers. Publisher agrees that VEERUS, or any designee of VEERUS, shall have the right, once per each six (6) month period, at VEERUS's sole cost and expense, to examine, inspect, audit, review and copy (an "Audit") and make extracts from all such books, records and any source documents used in the preparation thereof, during normal business hours upon written notice to Publisher at least five (5) business days prior to the commencement of an Audit.
8. Confidentiality.
The terms of this Agreement, each VEERUS Insertion Order, and any information that is either identified by a party as confidential at the time of disclosure or should be understood by a reasonable person under the circumstances to be confidential in nature, shall be deemed to be that disclosing party's Confidential Information. Without limiting the generality of the foregoing, Confidential Information shall include, but is not limited to: Units, User information, pay out rates, VEERUS Code, IP, test results, statistics, and other information which is proprietary in nature. Neither party shall at any time disclose any of the terms of this Agreement, nor any Confidential Information shared pursuant hereto, to any third party except to the legal advisors of either party, investors or financing sources, or as may be requested by a government agency or otherwise required by applicable law. The foregoing confidentiality provisions shall not apply where the receiving party can demonstrate that the information: (i) was previously known to the receiving party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; (iv) was disclosed pursuant to judicial order, subpoena, requirement or request of a governmental agency, or by operation of law; or (v) is independently developed by a party without use of or reliance upon the disclosing party's Confidential Information. The parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to seek injunctive relief without the necessity of post a bond or other security.
9. Representations and Warranties.
Each party represents and warrants to the other that: (a) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and (b) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, or decree to which such party is bound. Publisher represents, warrants, covenants, and acknowledges that: (a) Publisher, the Publisher Media, and each and every Sub-Publisher will comply with all applicable international, federal, state, and local laws, rules, regulations, and the United States Federal Trade Commission guidelines, including without limitation those relating to advertising, consumer protection, the Internet, privacy, email, data security, and deceptive or unfair business practices; (b) Publisher and each and every Sub-Publisher will comply with its privacy policy; and (c) Publisher, if an individual, is at least 18 years of age.
10. Indemnity.
Between VEERUS and Publisher, Publisher is solely responsible for any legal liability arising out of or relating to: (a) the Publisher Media; (b) any material to which Users can link through the Publisher Media; (c) the acts and/or omissions of Publisher; (d) the acts and/or omissions of its Sub-Publishers; and (e) any consumer and/or governmental/regulatory complaint or inquiry arising out of Publisher’s and/or its Sub-Publishers’ distribution of the Ads. Publisher shall defend, indemnify and hold harmless VEERUS and its officers, directors, shareholders, employees, agents, representatives, affiliates, and Advertisers (collectively "VEERUS Parties") from and against any and all liabilities, losses, expenses, damages, costs, penalties, and obligations (including without limitation reasonable attorneys' fees) (collectively "Losses") that may at any time be incurred by, or imposed or asserted against, the VEERUS Parties by reason of any demand, claim, suit, inquiry, investigation, or proceeding for: (a) slander, libel, defamation, violation of rights of privacy or publicity, violation of intellectual property rights, fraud, false advertising, misrepresentation, unfair or deceptive acts or practices, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the Publisher Media and/or Publisher’s performance under this Agreement, including the acts and/or omissions of any Sub-Publisher; (b) any breach by Publisher of any obligation, duty, representation, or warranty under this Agreement; (c) a contaminated file, virus, worm, or Trojan horse originating from the Publisher Media; or (d) negligence, misconduct or any act or omission of or by Publisher or any Sub-Publisher.
11. Limitations of Warranties and Liability.
ALL SERVICES PROVIDED BY VEERUS ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, VEERUS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE WEBSITE AND THE SERVICES AND MATERIALS AVAILABLE ON THE WEBSITE FOR ANY PURPOSE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. VEERUS MAY IN ITS SOLE AND ABSOLUTE DISCRETION AND WITHOUT ADVANCE NOTICE MAKE MODIFICATIONS AND/OR CHANGES TO THE WEBSITE AND/OR THE SERVICES AND MATERIALS AVAILABLE ON THE WEBSITE AT ANY TIME. YOU ASSUME THE SOLE RISK OF USING AND/OR RELYING ON THE SERVICES AND MATERIALS AVAILABLE ON THE WEBSITE.VEERUS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. THE TERMS OF THIS AGREEMENT ARE SUBJECT TO THE LIMITATIONS OF VEERUS HARDWARE, SOFTWARE AND BANDWIDTH. VEERUS’S FAILURE TO DELIVER THE SERVICES BECAUSE OF TECHNICAL DIFFICULTIES DOES NOT AMOUNT TO A FAILURE TO MEET THE OBLIGATIONS OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL VEERUS BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF VEERUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT OR ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL AFFWORK’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE AMOUNT PAID TO PUBLISHER FOR THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSAND U.S. DOLLARS ($10,000.00). NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST VEERUS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
12. Arbitration and Class Action Waiver
EXCEPT WHERE PROHIBITED BY LAW, PUBLISHER AND VEERUS AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN PUBLISHER AND VEERUS (including disputes against any Sub-Publisher, agent, employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other), ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES, relating to our Websites, the SERVICES AND MATERIALS published by VEERUS on or through the Websites, any transaction or relationship between VEERUS and Publisher resulting from Publisher’s use of Affwork’s Websites, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA").
The following procedures shall apply:
In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail and shall describe in such notice, with reasonable particularity, the nature and basis of such claim and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA") and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties' dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. The AAA Rules are available online at www.adr.org. Unless otherwise agreed, the arbitration shall take place in the capital city of the state in which the consumer resides, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses).
BY AGREEING TO THIS ARBITRATION AGREEMENT, PUBLISHER IS GIVING UP ITS RIGHT TO GO TO COURT, INCLUDING ITS RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. Publisher acknowledges that this class action waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties' agreement to arbitrate shall be null and void. PUBLISHER UNDERSTANDS THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, PUBLISHER MAY ONLY BRING CLAIMS AGAINST VEERUS, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Agreeing to this Arbitration Provision is not a mandatory condition of Publishers contractual relationship with the Company. If Publisher does not want to be subject to this Arbitration Provision, Publisher may opt out of this Arbitration Provision. To do so, within 30 days of the date that this Agreement is electronically accepted by Publisher, Publisher must send a written notice to Affwork’s address, included herein, stating your intent to opt out of this Arbitration Provision, as well as the name, address and the email associated with Publisher’s account. A letter sent by an agent or representative (including Publisher’s counsel) shall not be effective. This letter may opt out Publisher only, and any letter that purports to opt out anyone other than Publisher shall be void as to any others. Should Publisher not opt out of this Arbitration Provision within the 30-day period, Publisher and VEERUS shall be bound by the terms of this Arbitration Provision.
Publisher will not be subject to retaliation if it opts out of this Arbitration Provision. If Publisher opts out of this Arbitration Provision and at the time of its receipt of this Agreement it was bound by an existing agreement to arbitrate disputes arising out of or related to Publisher’s use of the Websites, that existing arbitration agreement will remain in full force and effect. Neither Publisher’s acceptance of this Agreement nor its decision to opt out of this Arbitration Provision will affect any obligation Publisher has to arbitrate disputes not specified in this Arbitration Provision pursuant to any other agreement Publisher may have with VEERUS.
Notwithstanding anything to the contrary herein, (a) a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Completion Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) must be arbitrated on a class basis, (b) in the event that the foregoing clause is deemed invalid or unenforceable, a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Completion Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) may be brought in the state or federal courts located in California on a class basis, and (c) any claims other than for public injunctive relief must be arbitrated on an individual, non-class basis as otherwise set forth in this Section.
13. Term & Termination.
This Agreement applies to Publisher for as long as Publisher distributes Ads for VEERUS. VEERUS reserves the right to terminate this Agreement immediately with or without notice to Publisher and remove any Publisher or sub-ID from VEERUS’s network at any time, with or without cause. Upon termination, Publisher agrees to immediately remove from the Publisher Media any and all VEERUS Code and IP. Publisher will be paid, in the next scheduled payment cycle following termination, all amounts due up to the time of termination as calculated by VEERUS in its sole discretion.
14. Entire Agreement; Modification.
This Agreement represents the entire understanding and agreement between the parties hereto and supersedes all prior agreements, understandings, conversations, and negotiations. This Agreement may not be amended by Publisher except by a writing signed by VEERUS. No online or click-through terms, conditions, policies, or documents offered by Publisher (“Publisher Online Terms & Conditions”) shall be deemed to have modified this Agreement, notwithstanding the fact that VEERUS may have affirmatively accepted such Publisher Online Terms & Conditions as a condition of accessing an online service. The terms of each party’s participation will be governed by this Agreement, any applicable VEERUS Insertion Orders, and any subsequent updates to this Agreement posted by VEERUS on its publisher portal.
15. Miscellaneous.
This Agreement shall be governed by the laws of the State of Delaware without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts located in New Castle County, Delaware. All notices, requests, demands, and other communications hereunder to VEERUS shall be in writing and shall be deemed given at the time such communication is delivered personally, by registered or certified mail (return receipt requested) or recognized national overnight courier service, addressed as follows: VEERUS HOLDINGS, LLC, Attn: Rishi Armstrong, 651 N Broad St Suite 205 #2342 Middletown, DE 19709. All notices, requests, demands, and other communications hereunder to Publisher shall be deemed given at the time such communication is sent to the email address listed on Publisher’s VEERUS account or the most recent Insertion Order, or delivered personally, by registered or certified mail (return receipt requested) or recognized national overnight courier service, to the address set forth on Publisher’s VEERUS account or the most recent Insertion Order. Publisher may not assign this Agreement without the express prior written consent of VEERUS. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument, including the signing by online means. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. In the event any portion of this Agreement is declared invalid by a court of competent jurisdiction, such portion shall be severed from this Agreement and the remaining parts shall remain in full force and effect.
BY CLICKING THE “SUBMIT” BUTTON, YOU HEREBY AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS PUBLISHER AGREEMENT. VEERUS HOLDINGS’S EXECUTION OF THIS AGREEMENT IS CONDITIONED ON YOUR AGREEMENT THAT ANY TERMS DIFFERENT FROM OR IN ADDITION TO THE TERMS OF THIS AGREEMENT, WHETHER COMMUNICATED ORALLY OR CONTAINED IN ANY INSERTION ORDER, INVOICE, ACKNOWLEDGEMENT, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE, RESPECTIVE OF THE TIMING, SHALL NOT FORM A PART OF THIS AGREEMENT, EVEN IF YOU PURPORT TO CONDITION YOUR ACCEPTANCE OF THIS AGREEMENT ON VEERUS HOLDINGS’S AGREEMENT TO SUCH DIFFERENT OR ADDITIONAL TERMS.
