GayAdPros.com Terms of Service
These Terms of Service form a legally binding agreement between you and
GayAdPros in relation to your use of the Services. It is important that you
take the time to read them carefully.
These terms were last changed on: March 5, 2012.
These GayAdPros.com program terms of service ("Terms") are entered into by, as applicable, the customer signing these Terms or any document that references these Terms or that accepts these Terms electronically ("Customer" also, depending on your use of the services, you may be called “Advertiser” if you purchase advertising positions or you may be called “Publisher” if you use the service to list advertising positions for sale) and GapGlobal Media, Inc. d/b/a GayAdPros.com ("GayAdPros"). These Terms govern your participation in GayAdPros' advertising program(s) ("Program") served through the web site located at www.gayadpros.com (the “Site”) and, as applicable, any Ad Unit Listing, Ad Unit Purchase, and order receipt issued (“Ad Unit Agreements”) and/or Customer's online management of any advertising campaigns. These Terms and any applicable Ad Unit Agreements are collectively referred to as the "Agreement." GayAdPros and Customer hereby agree and acknowledge:
1. Acceptance. Customer accepts the Terms by clicking to accept or agree to the Terms, or by participating in the Program by which action you understand and agree that GayAdPros will treat such participation in the Program as acceptance of the Terms. Customer may not participate in the Program and may not accept the Terms if you are not a person not at least eighteen (18) years of age or are barred from participating in the Program under the laws of the United States or other countries including the country in which it is resident and/or incorporated in or from which you would participate in the Program. GayAdPros may modify, change, and/or provide new Terms at any time without liability, effective immediately upon GayAdPros' posting of the modified, changed and/or new Terms. Customer’s use of the Program after GayAdPros has made a copy of the modified, changed and/or new Terms available at www.gayadpros.com/terms.php constitutes your acceptance of the modified, changed, and/or new Terms. In the event of any conflict and/or inconsistency between an Ad Unit Agreement and the Terms, the Terms shall control.
2. Passwords and Account Security. Customer agrees and understands it is responsible for maintaining the confidentiality of passwords associated with its account used to access the Services. Customer agrees and understands you are solely responsible to GayAdPros for all activities that occur under your account, and that GayAdPros is authorized to accept your password as conclusive evidence that you have accessed or utilized the restricted portions of the Site. Customer shall notify GayAdPros immediately upon your knowledge of any unauthorized use of your password or your account. Customer acknowledges that such password(s) are unique to you and that, although GayAdPros does have the ability to require password(s) to meet certain requirements (such as a minimum or maximum number of characters) and to reset such password(s), GayAdPros does not have the ability to access the password(s) themselves.
4. The Program for Advertisers. Customer may purchase specific placement on internet advertising sites provided by a third party in an Ad Unit Listing (in which case, Customer shall be called “Advertiser” and the purchase an “Ad Unit Purchase”). Each Ad Unit Purchase shall be pre-paid by Advertiser. The specific terms of the placement shall be specified in each Ad Unit Listing, and may be summarized in an order receipt. Advertiser authorizes and consents to all placements so purchased. Advertiser is solely responsible for all: (a) ad targeting options and keywords (collectively "Targets") and all advertising content, ad information, and ad URLs ("Creative"), whether generated by or for Advertiser; and (b) web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products. Advertiser takes full responsibility for Advertiser’s own, and third party, use of any Advertiser accounts.
Advertiser agrees that all placements of its ads shall conclusively be deemed to have been approved by Advertiser. Advertiser agrees that GayAdPros has not made any guarantees with respect to usage statistics and GayAdPros shall not be held liable for any claims relating to usage statistics. Advertiser must provide GayAdPros with all relevant Creative by the due date set forth in the Ad Unit Agreement. Advertiser grants GayAdPros permission to utilize an automated software program to retrieve and analyze websites associated with the Services for ad quality and serving purposes. GayAdPros may modify any of its Programs at any time without liability. GayAdPros may reject or remove any ad or Target for any or no reason.
5. The Program for Publishers. Customer may list erotica themed domain advertising positions (“Ad Unit Listing”) on the Site (in which case, Customer shall be called “Publisher”). GayAdPros is responsible for all placement of banners and text ads, third party ad network text ads banners, and other formats of ad units (“Placement”). Publisher is solely responsible for video media insertions and the domains, websites, services and landing pages on which advertisements shall be placed (“Publisher’s Domain”). The specific terms of each placement shall be specified by the Publisher in the Ad Unit Listing. Publisher understands and agrees that ad content is the sole responsibility of Advertisers, and acknowledges and agrees that GayAdPros has no control over any advertisement’s Targets and/or Creative.
GayAdPros agrees to provide Publisher with the ability to accept or reject new Advertisers or specific advertisements on a queue-style basis. GayAdPros will e-mail Publisher a notice of a new Ad Unit Agreement (“Notice”) and Publisher shall log on to its account to review the Targets and Creative files for prospective Advertisers. Publisher shall respond to GayAdPros’ Notice within twenty-four (24) hours of delivery of Notice to Publisher. After that time, if Publisher has not approved or denied the advertisement, it will be deemed approved. After Publisher has approved or has been deemed to approve an advertisement, Publisher hereby agrees to maintain and not change such advertisement for the full duration specified in the Ad Unit Agreement. If publisher removes/discontinues the ad unit, publisher agrees to forfeit any outstanding or yet to be paid proceeds earned on that ad unit prior to removal of the GayAdPros link code from the publisher's website. Publisher takes full responsibility for Publisher’s own, and third party, use of any Publisher accounts.
GayAdPros will host and serve banners and/or text link creative/advertising units to be deployed on Publisher’s Domain in ad positions, except for video media insertions. For any video media insertions, GayAdPros shall email ad materials to the Publisher for handling and placement at Publisher’s sole expense. GayAdPros shall be responsible for all hosting and bandwidth charges incurred for serving the ad pages being supported by Publisher’s traffic, with the exception of video media insertions.
GayAdPros reserves the right to issue a press release to adult entertainment industry news and business to business information web sites acknowledging the existence (but not the terms) of this agreement and the availability of Publisher adult themed interactive media through GayAdPros.
GayAdPros Services to any specific Publisher Domain are subject to GayAdPros approval and will meet GayAdPros’ current specifications. GayAdPros reserves the absolute right to reject any Publisher Domain Ad Unit Listings.
6. Provision of the Services by GayAdPros. Customer acknowledges and agrees that subsidiaries and affiliated legal entities of GayAdPros may provide the Services. Customer acknowledges and agrees that the form and nature of the Services which GayAdPros provides may change from time to time without prior notice. Customer acknowledges and agrees that GayAdPros may stop (permanently or temporarily) providing the Services at GayAdPros’ sole discretion, without prior notice. Customer acknowledges and agrees that if GayAdPros disables access to Customer’s account, you may be prevented from accessing the Services, your account details, and any files or other content which is contained in such account. Customer acknowledges and agrees that GayAdPros may set a fixed upper limit on the amount of storage space used for the provision of the Services at any time, at GayAdPros’ discretion
7. Advertiser Cancellation of Advertisements. An Ad Unit Agreement may be canceled by either Advertiser or GayAdPros before the advertisement goes live. Advertiser may cancel advertising online through its account if online cancellation functionality is available, or, if not available, with prior written notice to GayAdPros by email at email@example.com. An Ad Unit Agreement may not be canceled once any advertisement begins to run, at which time the pre-payment immediately becomes non-refundable and Advertiser forfeits any and all rights to terminate the Ad Unit Agreement for a refund of any payment. GayAdPros may cancel immediately any Ad Unit Agreement, any of its Programs, or these Terms at any time with notice, in which case Advertiser will be responsible for any ads already run.
8. Publisher Cancellation of Advertisements. An Ad Unit Listing may be cancelled by either Publisher or GayAdPros before an Ad Unit Agreement is approved or deed approved. Publisher may cancel an Ad Unit Listing online through its account if online cancellation functionality is available, or, if not available, with prior written notice to GayAdPros by email at firstname.lastname@example.org. An Ad Unit Listing may not be canceled once an Ad Unit Agreement has been approved or deemed approved.
9. License from GayAdPros. GayAdPros gives Customer a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the information, advertisements, text links, animations, flash files, data files, code snippets, text, music, sound, photographs, graphics, video, messages, tags, or other materials (collectively, "Site Materials") on the Site which may be protected by copyright, trademark or other proprietary rights of GayAdPros and its affiliates or other third parties (whether those rights happen to be registered or not, and wherever in the world those rights may exist). This license is for the sole purpose of enabling Customer to use the Services as provided by GayAdPros, in the manner permitted by the Terms. Customer may not (nor permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Site Materials, or any part thereof, unless this is expressly permitted or required by law. Nothing in the Terms gives Customer a right to use any of GayAdPros’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. Other than the limited license set forth in these Terms, Customer agrees that it shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
10. Advertisement Content. Advertiser will provide all material for the advertisements for all Ad Unit Agreements, in accordance with GayAdPros’ policies as provided to Customer by GayAdPros from time to time, including without limitation the manner of transmission and the time of transmission prior to publication of the advertisement. GayAdPros shall not be required to publish any advertisement that is not received in accordance with such policies. All contents of advertisements are subject to GayAdPros’ reasonable approval and will meet GayAdPros’ current specifications. GayAdPros reserves the right to reasonably reject or cease to host any advertisement. In addition, GayAdPros shall have the absolute right to reject any URL link embodied within any advertisement. GayAdPros does not and cannot review all communications or Creative uploaded to the Site and is not responsible for the content of such communications or Creative. Advertiser shall remain solely responsible for all communications made or Creative uploaded under its password. Advertiser, and not GayAdPros, is entirely responsible for all Creative that it submits to be placed as advertising on a Publisher’s web site. Customer understands that by using the Site, it may be exposed to content it may consider to be offensive, indecent or objectionable. Under no circumstances will GayAdPros be liable in any way for any Creative, including, but not limited to, any errors or omissions in any Creative, or any loss or damage of any kind incurred as a result of the use of any Creative posted, emailed, transmitted or otherwise made available on the Site.
11. Publishers Uses. In connection with Publisher’s use of the Site, when Publisher publishes advertisement listings it agrees to:
- Keep GayAdPros’ ad serving code on Publisher’s website until all ads that have been sold on Publisher’s site have finished running according to the terms of the Ad Unit Agreement.
- Keep the Customer’s website description current on GayAdPros’ Site current to provide accurate information to potential advertisers.
- Approve or deny ads in a timely fashion, at a minimum, in twenty-four (24) hours of delivery of notice of an Ad Unit Agreement. It is Publisher’s responsibility to review all advertising that is purchased for placement on its web site.
- Notify GayAdPros via email if Publisher wishes to permanently close its account.
- Accept GayAdPros' terms for payment.
- Receive periodic email announcements from GayAdPros about ads sold on Publisher’s site and changes to the services provided by GayAdPros.
- Immediately remove all links to GayAdPros’ site upon termination of this Agreement.
12. Advertisers Uses. In connection with Advertiser’s use of the Site, when Advertiser buys an ad, it agrees to:
- Write ads that do not break the law.
- Write ads that do not use or infer violence, rape, or underage activity.
- Check that the ad links to the correct content.
- Immediately remove all links to GayAdPros’ site upon termination of this Agreement.
13. Prohibited Customer Uses. In connection with Customer’s use of the Site, it agrees that it shall not, and shall not authorize any party to:
- Generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions (known as “click spamming”). Click Spamming will result in Customer’s account being terminated and a Publisher will forfeit all outstanding Payout due. Further, if GayAdPros determines that a link was purchased fraudulently, the link will be removed and no Payout will be made to a Publisher.
- Use this Site to promote "get paid to read" or "get paid to click" type programs, or promote a pyramid scheme or similar multi-level marketing programs, or link to any site that does any of the foregoing.
- Use any automated means or form of scraping or data extraction to access, query or otherwise collect GayAdPros advertising related information from any Program website or property except as expressly permitted by GayAdPros.
- Advertise anything illegal or engage in any illegal or fraudulent business practice pursuant to any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including but not limited to all relevant countries).
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy) of others.
- Publish or disseminate any defamatory, infringing, or unlawful material or information.
- Upload or otherwise transfer files that contain viruses, corrupted files or any other similar software or programs that may damage or inhibit the operation of another computer.
- Delete any author attributions, legal notices, or proprietary designations or labels in any file that is uploaded.
- Use any communications or Site Materials or other information obtained through the Site in a manner that is competitive with the Site or GayAdPros' business.
- Use the Site to harm minors in any way.
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Creative and or Targets transmitted through the Site.
- Remove any proprietary notices from this Site.
- Cause, permit or authorize the modification, creation of derivative works, or translation of the Site.
- Attempt to decompile, reverse engineer, disassemble or hack the Site, or to defeat or overcome any encryption technology or security measures implemented by GayAdPros with respect to the Site and/or data transmitted, processed or stored by GayAdPros.
- Upload any Creative or Targets that Customer does not have a right to make available under any law or under contractual or fiduciary relationships or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
- Upload any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
- Interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.
- Use the Site to intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
- Use the Site to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
- Use the Site to collect or store personal data about other users in connection with the prohibited conduct and activities set forth above.
14. Customer License Grant; Customer Representations and Warranties. Customer
hereby grants GayAdPros a perpetual, irrevocable, worldwide, royalty-free,
and non-exclusive license (including without limitation any copyright, trademark,
patent, publicity or other rights) to use its trademarks, service marks, service
names and trade names in connection with the Services, including but not limited
to Creative and Targets needed for GayAdPros to operate Programs (including
without limitation any rights needed to host, cache, route, transmit, store,
copy, modify, distribute, perform, display, reformat, excerpt, analyze, and
create algorithms from and derivative works of Creative or Targets) in connection
with this Agreement ("Use"). Customer understands
that GayAdPros, in performing the required technical steps to provide the Services,
may transmit or distribute Customer’s Creative and Targets over various
public networks and in various media; and make such changes to Customer’s
Targets as are necessary to conform and adapt those Targets to the technical
requirements of connecting networks, devices, services or media. Customer agrees
that this license shall permit GayAdPros to take these actions. Customer
confirms and warrants to GayAdPros that it has all the rights, power and authority
necessary to grant the above license. Customer retains all right, title and
interest in and to the Customer internet site, its trademarks, service marks,
service names and trade names worldwide.
Customer represents and warrants that all its information is complete, correct and current and will be updated as necessary; and any Use hereunder and Creative, Targets, and its web site will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement or Customer's account without notice and may subject you to legal penalties and consequences. Customer agrees to not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Customer agrees it is solely responsible for (and that GayAdPros has no responsibility to Customer or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which GayAdPros may suffer) of any such breach. GayAdPros obtains no right, title or interest from Customer (or its licensors) under these Terms in or to any Customer Creative displayed through the Services, including any intellectual property rights which subsist in that Customer Creative (whether those rights happen to be registered or not, and wherever in the world those rights may exist), except as provided above. Customer agrees that it is responsible for protecting and enforcing those rights and that GayAdPros has no obligation to do so on Customer’s behalf.
15. Customer 2257 Representation. Customer hereby represents, warrants and covenants to GayAdPros that, without limiting the generality of Sections 17 and 18 of these Terms, no Customer Creative shall violate 18 USC 2257 or 28 CFR 75 or any successor legislation or code. Customer has prepared, maintained and executed, and at all times during the Services shall prepare, maintain and execute any documents or records, and provide GayAdPros with copies of any documents or records which are required by Title 18, USC ss 2257, as amended, and/or the associated regulations found at 28 CFR 75.1 et. Seq., as amended, and/or any successor statute or regulation (“Section 2257”). Customer warrants and represents that it is in possession of such documents and records, and maintains them in accordance with Section 2257. Customer agrees to appoint a record custodian as required under Section 2257, and will keep GayAdPros apprised of the physical address where all required records are compiled and maintained pursuant to Section 2257, along with the full legal name of the records custodian. Customer will display a conspicuous disclosure statement on all depictions of “actual sexually explicit conduct” contained in the content as required by Section 2257. Customer further agrees to cooperate with GayAdPros in connection with any inspections or government inquiries initiated pursuant to Section 2257. GayAdPros shall have the right to inspect such documents and records at any time during regular business hours at Customer’s location for maintaining the records with five (5) business days’ prior electronic notice from GayAdPros.
16. Customer Third Party Content Representations. Customer hereby represents, warrants and covenants to GayAdPros that, without limiting the generality of Sections 17 and 18 of these Terms, nor the specificity of Section 15 of these Terms, Customer:
- Screens third-party content on its website with devices intended to be sure such content complies with applicable laws, in accordance with the Good Samaritan exemption of 15 U.S.C. 6501 et seq.;
- Complies with the Digital Millennium Copyright Act’s notice and take down procedures for all third-party content on its website, including but not limited to registration of designated agent as applicable;
- Requires compliance with 18 U.S.C. 2257 by all third-party content posters, including, but not limited to the requirements set forth in Section 15 of this Agreement;
- Enforces a policy of compliance with the Protection of Children from Sexual Predators Act of 1998; and
- Enforces policies that attempt to restrict, in good faith, access by or transmission to minors to material harmful to minors.
17. Disclaimer of Warranties. NOTHING IN
THESE TERMS, INCLUDING SECTIONS 17 AND 18, SHALL EXCLUDE OR LIMIT GAYADPROS’S
WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED
BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS
OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS,
OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH
ARE LAWFUL IN CUSTOMER’S JURISDICTION WILL APPLY TO CUSTOMER AND OUR
LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.” IN PARTICULAR, GAYADPROS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) THE AMOUNT OF SALES REVENUE THAT MAY GENERATED DURING THE SERVICES, AND (C) ANY ECONOMIC OR OTHER BENEFIT THAT THE PARTIES MIGHT OBTAIN THROUGH THEIR PARTICIPATION IN THIS AGREEMENT; AND (D) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GAYADPROS OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THIS AGREEMENT, BOTH PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR ANY PURPOSE AND NONINFRINGEMENT. To the fullest extent permitted by law, GayAdPros disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions, Creative, or Targets; (iv) clicks; (v) conversions or other results for any ads or Targets; (vi) the accuracy of statistical data; and (vii) the placement of ads within a Program. Customer understands that third parties may generate impressions or clicks on Customer's ads for prohibited or improper purposes, and Customer accepts the risk of any such impressions and clicks.
18. Limitation of Liability. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND CUSTOMER'S BREACHES OF SECTION 3, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF REVENUE, LOSS OR CORRUPTION OF DATA, LOSS OR INTERUPTION OF BUSINESS, LOSS OF GOODWILL OR OTHER LOSS ARISING OUT OR RESULTING FROM THE AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS DUE TO (i) ANY CHANGES WHICH GAYADPROS MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES; (ii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CREATIVE OR TARGETS MAINTANED OR TRANSMITTED BY OR THROUGH CUSTOMER’S USE OF THE SERVICES; (iii) CUSTOMER’S FAILURE TO PROVIDE GAYADPROS WITH ACCURATE ACCOUNT INFORMATION; OR (iv) CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO CUMULATIVE AMOUNTS PAID OR PAYABLE BY EACH PARTY TO THE OTHER PARTY. THE LIMITATIONS ON GAYADPROS’S LIABILITY TO CUSTOMER IN THIS PARAGRAPH SHALL APPLY WHETHER OR NOT GAYADPROS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
19. Agency. Customer represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Customer advertises (a "Principal"), (b) as between Principal and Customer, the Principal owns any rights to Program information in connection with those ads, and (c) Customer shall not disclose Principal's Program information to any other party without Principal's consent.
20. Advertiser Payment. Advertiser shall be responsible for all charges up to the amount of each Ad Unit Agreement, or as set in an online account, and shall pay all charges in U.S. Dollars. Advertiser shall prepay all charges in accordance with the applicable Ad Unit Agreement. Charges are exclusive of taxes. Advertiser is responsible for paying all taxes, government charges, and reasonable expenses and attorneys fees GayAdPros incurs collecting late amounts. GayAdPros incurs no obligation to run any advertisements until the corresponding complete charges are pre-paid. If payment is not pre-paid, Advertiser forfeits any right to said specific placement, and GayAdPros is free to sell all specific placements to another party.
To the fullest extent permitted by law, Advertiser waives all claims relating to charges unless claimed within 60 days after the charge (this does not affect Advertiser’s credit card issuer rights). Charges are solely based on GayAdPros' measurements for the applicable Program, unless otherwise agreed to in writing. Nothing in these Terms or an Ad Unit Agreement may obligate GayAdPros to extend credit to any party.
21. Publisher Payout. The Publisher will receive the Gross Revenues received by GayAdPros for Publisher’s Ad Unit Listings sold on the Site less GayAdPros’ listing share (“Payout”). GayAdPros listing share shall be 50% unless stated otherwise in writing on the Publisher’s revenue statistics page on the Site. Payout is for all monthly advertising and related affiliate revenue generated by GayAdPros’ Services for the duration of the term Payout. Payout based on Gross Revenues generated from a calendar month shall be paid within sixty (60) days of completion of such period. Payments by GayAdPros to Customer shall be made via wire transfer. Payout of less than $50 in any given month shall be deferred until the following month, or until such time as the payment totals at least $50.
22. Refund Policy. GayAdPros will issue refunds in its sole discretion, and the following states GayAdPros’ general refund policy as it changes from time to time. If Advertiser purchases an ad and then contacts GayAdPros within twenty-four (24) hours to indicate that it no longer wishes to run the ad, GayAdPros will cancel and refund the ad provided that the ad has not yet started to be displayed. No refunds will be given after the ad has started to be displayed. If Publisher rejects an advertisement, GayAdPros will refund the ad to the Advertiser. If Advertiser has purchased a flat rate Ad Unit Listing and the Publisher’s website has downtime exceeding two percent (2%) of the Ad Unit Agreement duration or if fraudulent clicks or impressions are detected, GayAdPros will credit the Advertiser’s account for future purchases in an amount determined solely by GayAdPros. All refunds and credits for Publishers will be deducted from Payout.
23. Confidential Information. In the course of dealings between the parties, the Customer and its affiliates understands that GayAdPros has disclosed or may disclose information.
Obligation to Keep Confidential. At all times during GayAdPros’ provision of Services for the Customer and thereafter, the Customer will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Confidential Information (defined below), and agrees: (a) to hold the GayAdPros’ Confidential Information in confidence and to take all reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Customer employs with respect to its confidential materials), (b) not to divulge any such Confidential Information or any information derived therefore to any third person, (c) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with the GayAdPros and (d) not to copy or reverse engineer such Confidential Information. Furthermore, Customer shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated to injure or cause loss whether directly or indirectly to the GayAdPros. Further, Customer agrees that during this Agreement GayAdPros shall not take, use or permit to be used any notes, memoranda, reports, lists, records, drawings, sketches, specification, software programs, data, documentation or other materials of any nature relating to any matter within the scope of the business of the GayAdPros of its dealings or affairs (“GayAdPros Materials”) otherwise than for the benefit of the Customer, and shall not use any GayAdPros Materials after the termination of this Agreement.
Use of Confidential Information. Confidential Information may be disclosed only as such disclosure, use or publication may be required in connection with Customer’s ordinary course of performance of its relationship with the GayAdPros or the GayAdPros’ ordinary course of business and only to those employees of the Customer who (a) reasonably require access to such information for the purposes contemplated hereby, (b) have been informed of the confidential nature of the Confidential Information, and (c) agree to act in accordance with the terms and conditions of this Agreement. Customer may also disclose Confidential Information if GayAdPros expressly authorizes such disclosure, use or publication in writing in advance.
Exclusions. Notwithstanding the foregoing, however, nothing herein shall limit the disclosure of such Confidential Information which: (a) is legally in the possession of the Customer or its employees prior to the receipt thereof from the GayAdPros, as evidenced by written records; (b) enters the public domain through no fault of the Customer or its employees (confidentiality restrictions of this Agreement shall continue to apply to information which only became public as a result of a breach of a confidentiality obligation owed to any GayAdPros to the extent the Customer knows that the information became public by virtue of an improper disclosure); (c) is disclosed to the Customer without restrictions or breach of any duty of confidentiality by a third party who has the right to make such disclosure; or (d) is independently developed by or for the Customer without reference to the disclosing party’s Confidential Information. Confidential Information shall not be deemed to be in the public domain merely because a part of the Confidential Information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public. In the event that the Customer is required by court or other governmental order to disclose any Confidential Information, the Customer shall provide prompt notice of such to the GayAdPros so that legal protection or other appropriate remedy for the Confidential Information may be sought. In the event such protection or remedy is not obtained, the Customer’s compliance with the non-disclosure provisions of this Agreement, to the extent required to comply with such court or other governmental order, shall be waived.
Definition of Confidential Information. The term “Confidential Information” shall mean all trade secrets, confidential knowledge, data or any other information or material that is proprietary to the GayAdPros which is disclosed to or obtained by the Customer from the GayAdPros. Such information includes, without limitation, all inventions, trade secrets, ideas, formulas, programs, other works of authorship, improvements, discoveries, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, patent applications, “know-how”, new product or new technology information, product prototypes (all foregoing hereinafter collectively referred to as “Inventions”), plans for research, products, future products, marketing, selling, business plans, budgets and unpublished financial statements, licenses, product copies, manufacturing, development or marketing techniques, materials or timetables, strategies and development plans, including trade names, trademarks, customer or publisher or supplier or personal names and other information related to customers or publishers or suppliers or personnel, current or future business opportunities, relationships with third-party companies, information regarding the skills and compensation of employees and/or GayAdPros, cost and pricing policies and financial information, the existence and terms and pricing of this Agreement, and other information of a similar nature or information derived from third parties which may be subject to obligations of secrecy and confidentiality on behalf of the GayAdPros, all whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.
Third Party Information. Customer understands, in addition, that GayAdPros and its affiliates have received and in the future may receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the part of the GayAdPros and its affiliates to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of this Agreement and thereafter, Customer will hold Third Party Information in the strictest confidence and will not disclose (to anyone other than Customer personnel who need to know such information in connection with their work for the GayAdPros) or use, except in connection with Customer’s work for the GayAdPros, any Third Party Information unless expressly authorized in writing by an officer of the GayAdPros in advance.
Remedies. The parties further understand and agree that irreparable harm would be suffered by the GayAdPros if Customer were to violate the restrictive covenants in this Section 23 and that remedies at law would not adequately compensate the GayAdPros for such violation. Accordingly, Customer agrees that, in addition to any legal remedies available to it, the GayAdPros shall be entitled to obtain immediate injunctive or other equitable relief against Customer without prior notice to restrain any and all activities in violation of the non-disclosure commitments set forth herein. GayAdPros hereby agrees that the Customer shall have the right to notify and communicate to any future employee or business partner of Customer the existence and terms of the foregoing commitments by Customer concerning non-disclosure of information.
24. Indemnification. Customer represents that it has full authority to enter into this Agreement and IOs, and that Customer has the right to publish the contents of the subject advertisements, without infringement of any rights of any third party(ies). In consideration of such publication, Customer agrees to defend, indemnify, and hold harmless GayAdPros and all other persons, officers, directors, agents, employees, representatives, firms, corporations, companies, partnerships, associations and/or partnerships associated with GayAdPros of and from any and every claim, proceeding, suit, action, and/or demand of every kind or character which may ever be asserted by way of subrogation or any reason by any third party(ies) to this Agreement claiming to be damaged, either directly or indirectly, by the placement of said advertisement(s) in any Campaign as described above or the consequences thereof. Customer will pay any and all costs, loss, damages and/or expenses (including but not limited to reasonable attorneys fees and costs) awarded against or otherwise incurred by GayAdPros in connection with or arising from any such claim, proceeding, suit, action, or demand.
Further, it is agreed that in addition to their general application, the hold harmless provisions hereof shall specifically apply to the claims or demands for damage, costs, loss and/or expense (including without limitation reasonable attorney fees and costs) of any third party(ies) to this Agreement or any other party claiming to have suffered damage, costs, loss and/or expense by reason of:
- The business activities of Customer and/or advertiser who has purchased Ad Unit Listings from Customer, including but not limited to damage, loss and/or expense resulting from the contents provided on the internet website(s) of Customer or the use or utilization of or reliance upon the internet website(s) of Customer by any third party(ies) to this Agreement;
- The violation or encroachment of any intellectual property rights, including but not limited to service marks, trademarks, copyrights and/or patents, by Customer and/or advertiser who has purchased Ad Unit Listings from Customer.
- The Customer’s (and/or advertiser who has purchased Ad Unit Listings from Customer) internet website(s) content or advertisement as delivered to GayAdPros by Customer containing any material or information that is unlawful, defamatory, libelous, slanderous, or that otherwise violates the rights of any person, including, without limitation, rights of publicity, privacy or personality, is negligently performed, or has otherwise resulted in consumer fraud, product liability or any tort, injury, damage or harm to any person or entity.
- The agreement must be construed as if both parties jointly wrote it.
- THE AGREEMENT SHALL BE GOVERNED BY COLORADO LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR GAYADPROS PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF DENVER COUNTY, COLORADO, USA, AND GAYADPROS AND CUSTOMER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. Notwithstanding this, Customer agrees that GayAdPros shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
- The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Any controversy or claim arising out of or relating to this Agreement, or the breach of the same, shall be settled through consultation and negotiation in good faith and a spirit of mutual cooperation for up to fifteen (15) days commencing on the date when one party gives written notice to the other party of any controversy or claim. However, if those attempts fail, the parties agree that any misunderstandings or disputes arising from this Agreement shall be decided by binding arbitration which shall be conducted, upon request by either party, in Denver, Colorado, before one (1) arbitrator designated by the American Arbitration Association (the “AAA”), in accordance with the terms of the Commercial Arbitration Rules of the AAA, and, to the maximum extent applicable, the United States Arbitration Act (Title 9 of the United States Code). Notwithstanding anything herein to the contrary, either party may proceed to a court of competent jurisdiction to obtain equitable relief at any time. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
- If GayAdPros is obligated to go to court to enforce any of its rights, or to collect any fees, Customer agrees to reimburse GayAdPros for its legal fees, costs and disbursements if GayAdPros is successful.
- The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof.
- No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents or oral discussions are void.
- Customer may grant approvals, permissions, extensions and consents by email, but any modifications by Customer to the Agreement must be made in a writing executed by both parties.
- Customer agrees that GayAdPros may provide it with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Site. Notice to Customer may be effected by sending an email to the email address specified in Customer's account, or by posting a message to Customer's account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted.
- Any notices to GayAdPros must be sent to GapGlobal Media, Inc., GayAdPros.com Program, 1021 N. Market Plaza, Suite 107 PMB 103, Pueblo West, CO 81007 USA, with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt.
- The relationship between Customer and GayAdPros is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any matter or thing whatsoever.
- Customer agrees that if GayAdPros does not exercise or enforce any legal right or remedy which is contained in the Terms (or which GayAdPros has the benefit of under any applicable law), this will not be taken to be a formal waiver of GayAdPros’ rights and that those rights or remedies will still be available to GayAdPros. A waiver of any default is not a waiver of any subsequent default.
- Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
- In the event that these Terms or a Program expire or is terminated, GayAdPros shall not be obligated to return any materials to Customer.
- If the Terms have been translated for Customer use, the English language versions of the Terms will govern Customer’s relationship with GayAdPros and if there is any contradiction between the English language version of the Terms and a translation, the English language version shall take precedence.
- GayAdPros may provide similar Services to other Customers in any business, including those in the same business as Customer.
- Customer may not resell, assign or transfer any of its rights under the Terms and any such attempt is void.
- These Terms shall be binding upon GayAdPros’ successors and permitted assigns, which will include without limitation any successor to all or substantially all of its assets or any acquirer of a majority of the voting power of either party’s voting stock, units or other voting shares.
- Except for payment obligations, Neither party shall be liable for any loss or delay resulting from any force majeure event, including without limitation acts of God, fire, natural disaster, terrorism, labor stoppage, government, war or military hostilities, disruptions caused by phone service outages, internet disruptions, inability of carriers to make scheduled deliveries, or any other causes the nature of which fall within the definition of “Acts of God” or force majeure. Any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.
26. Ending This Agreement. The Terms will continue
to apply until terminated by either Customer or GayAdPros. Either Customer
or GayAdPros may terminate this Agreement by providing the other party with
at least thirty (30) days notice. Upon a termination with notice, all
due but unpaid Payout calculated pursuant to Section 20 shall be payable to
Publisher, less GayAdPros’ revenue share, according to the schedule and
timing defined in Section 20. Customer shall immediately remove all links
to GayAdPros’ site upon termination.
If Customer violates this Agreement , GayAdPros reserves the right, in its sole discretion, to restrict, suspend or terminate Customer’s right to access the membership portions of the Site without prior notice, without refund for Advertisers nor further Payout for Publishers. GayAdPros may change, suspend or discontinue all or any aspect of the Site at any time, including the availability of any feature, or database, without prior notice or liability. GayAdPros may also terminate or suspend Customer’s access to the membership portions of the Site for inactivity, which is defined as failing to access the membership portions of the Site for an extended period of time, as reasonably determined by GayAdPros. Upon termination of Customer’s access to the membership portions of the Site, Customer agrees to forfeit all credits remaining in its account.
Termination of this Agreement does not relieve Customer of its responsibilities to pay any amounts due to GayAdPros under this Agreement or its obligations to not use the restricted portions of the Site other than in the manner permitted under this Agreement. Termination of this Agreement shall operate without prejudice to GayAdPros' rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement. Upon termination of these Terms, all of the legal rights, obligations and liabilities that Customer and GayAdPros have benefited from, been subject to (or which have accrued) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 23 shall continue to apply to such rights, obligations and liabilities indefinitely.
27. Links to Third Party Sites. The links provided throughout the Site will let Customer leave this Site. These links are provided as a courtesy only, and the sites they link to are not under the control of GayAdPros in any manner whatsoever. Therefore, GayAdPros is in no manner responsible for the contents of any such linked site or any link contained within a linked site, including any changes or updates to such sites. GayAdPros provides these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by GayAdPros of any linked site and/or any of its content therein.
28. Acknowledgement. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, CONDITIONS, PROMISES, REPRESENTATIONS, WARRANTIES, DUTIES AND OBLIGATIONS. CUSTOMER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND GAYADPROS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN CUSTOMER AND GAYADPROS RELATING TO THE SUBJECT OF THIS MEMBERSHIP AGREEMENT.
BY CLICKING ON THE “I AGREE” BUTTON AND/OR BY ENTERING THE GAYADPROS.COM WEB SITE, AND/OR BY SUPPLYING GAYADPROS WITH REQUIRED SIGN-UP INFORMATION FOR MYSELF AND MY WEBSITE, I AGREE AND ACKNOWELDGE THAT I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.