Terms of service
PLEASE READ THIS TERMS OF SERVICE("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY KARCUS LIMITED. ("KARCUS "). BY CLICKING THE "SIGN UP" BOX, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY THE KARCUS. KARCUS'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY THE KARCUS, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
- "Ad" or "Creative" means the graphic or text file(s) provided to Publisher to market on behalf of Advertiser and/or KARCUS.
- "Advertiser" means KARCUS and/or the advertiser or advertising agency providing Ads to KARCUS for use on Publisher's Website(s) as specified herein.
- "Approved Websites" means the Publisher's domain(s) and/or specific root URLs approved by KARCUS.
- "KARCUS Code" means pixels, intellectual property or other computer code provided by KARCUS for use by Publisher.
- "KARCUS Network" means KARCUS's affiliated group of third-party Websites or Mobile VAS providers by which KARCUS may insert Ads.
- "KARCUS System" refers to the collection of software, including ad serving and measurement technologies that KARCUS uses to provide services to both advertisers and publishers.
- "Publisher Media" shall mean the Website, search engine or other electronic media on which Publisher places Ads.
- "User" means any person accessing Publisher Media.
KARCUS and Publisher agree as follows:
1. KARCUS Network
- Membership: Membership in the Network is subject to prior approval by KARCUS. KARCUS reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Network is limited only to the domains, Short Code and/or specific root URLs for which Publisher has applied for approval by KARCUS.
- You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage your account with KARCUS or to monitor or copy the KARCUS Websites or the content contained therein except via automated means expressly made available by KARCUS, if any, or authorized in advance and in writing by KARCUS (for example, KARCUS-approved third-party tools and services). You will not interfere or attempt to interfere with the proper working of the KARCUS Websites or any program thereon, or the KARCUS System. Without limitation to the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on the KARCUS Websites, any programs thereon, or KARCUS's infrastructure, as determined by KARCUS.
- Services: Publisher understands and agrees that from time to time the KARCUS System hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which KARCUS may undertake from time to time; or (iii) causes beyond the control of KARCUS or which are not reasonably foreseeable by KARCUS, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures. While KARCUS will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that KARCUS has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that KARCUS is not responsible for the functionality of any third-party Website or interface. Terms of this Agreement are subject to KARCUS hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement. KARCUS reserves the right to discontinue offering any of the KARCUS Systems and/or KARCUS Websites at any time. Except as otherwise specified by KARCUS, Publisher agrees that it will direct all communications relating to any KARCUS Website or your participation therein directly to KARCUS and not to any other entity.
2. Website Content and Prohibited Conduct
- Prohibited Conduct: KARCUS does not accept Websites or Mobile VAS that produce, relate to or have characteristics of Prohibited Conduct. "Prohibited Conduct" is defined as:
- Ad Placement & Tracking: Publisher shall not: (1) Place Creatives or Ads in emails without prior consent and tracking from KARCUS; (2) Intentionally place Creatives on blank web pages or on web pages with no content; (3) Stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); (4) Place Creatives on non-approved Websites or web pages, or in such a fashion that may be deceptive to the User; (5) Incentivize offers or create the appearance to incentivize offers; (6) Place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (7) Place misleading statements near the Ad (i.e., "You will win $5,000."); (8) Redirect traffic to a Website other than that listed by the particular Advertiser; (9) Ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (10) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of KARCUS, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (11) Use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (12) Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from KARCUS that allows KARCUS to measure ad performance and provide its service.
- Websites: Publisher shall not place any Creative, Ads or Network IP on Web Sites that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of KARCUS; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity.; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) Websites under construction, hosted by a free service, personal home pages, or do not own the domain they are under; (5) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; (6) Promote activities generally understood as Internet 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 (i) 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; (ii) prevent a computer User's reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User's computer; (iv) send email through a User's computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable law.
3. Ad Content and Placement
- Compliance with Industry Standards: Publisher agrees to undertake and complete the services as specified by the KARCUS Network, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website.
- No Modifications to Creative, Code or Network IP: Except as permitted under this Agreement, Publisher may not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative, Network IP or computer code provided by KARCUS without KARCUS's prior written consent. Publisher may not copy KARCUS's Ads and display them from Publisher's Website directly; redirect traffic to a Website other than that listed by KARCUS or the Advertiser; or ask Users to take advantage of other Ads or offers other than those listed by KARCUS or Advertiser. Any KARCUS content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to KARCUS Code or Network IP shall be owned solely by KARCUS.
4. Network Quality
KARCUS will not tolerate or accept any activities it deems harmful or potentially damaging to its reputation and/or business, or that of its customers and/or clients including but not limited to the activities stated in this Agreement. KARCUS employs individuals for the express purpose of monitoring the Publisher's Websites within our network to ensure that our customers and clients are receiving the highest quality campaigns. KARCUS has also developed an advanced anti-fraud system and regularly audits Publisher's traffic. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivized clicks, will have their account permanently removed from the Network and may not be compensated for fraudulent traffic. KARCUS has several fraud mechanisms at its disposal that will detect most forms within a few days of the initial activity. All Creatives must be served from an KARCUS server or serving location, or through a KARCUS approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.
5. Proprietary Rights
- Licenses: At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, KARCUS hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as KARCUS granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that KARCUS and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher's use of the Network IP or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
- Intellectual Property Ownership: Subject to the limited licenses granted to KARCUS and Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, Short codes, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
- Data Ownership: Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by KARCUS from such data is the sole and exclusive property of Advertiser and KARCUS and is considered Confidential Information pursuant to this Agreement. KARCUS and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the User(s) and or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.
6. Representations and Warranties
- Publisher Responsibility: The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the campaigns, and that KARCUS will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.
- Mutual Warranties: Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the Agreement.
- Obligations: Consumer privacy is of paramount importance to KARCUS, its subsidiaries, and its customers. KARCUS is committed to protecting the privacy of consumers, clients, and Advertisers, and to do its part to maintain the integrity of the Internet. Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement.
- Payment Rate: KARCUS reserves the right to set campaign rates, which may vary with market conditions. Publishers will typically be paid within sixty (60) days after the end-of-month. Do not invoice KARCUS; all Publisher invoices are discarded. Publishers will be paid at the account level. All accounts will be settled in US dollars. No check will be issued for any amount less than US$50 or equivalent value in applicable currency ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network.
- Breach or Fraud: If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, KARCUS reserves the right to withhold payment and take appropriate legal action.
- Calculation: Calculation of Publisher earnings, including Impressions and click through numbers, shall be in KARCUS's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to KARCUS detailing, with specificity, Publisher's concerns. Thereafter, KARCUS will provide Publisher with an explanation or, if such calculations are determined by KARCUS to be incorrect, an adjustment. KARCUS's calculations shall be final and binding. In the event no adjustment is necessary, Publisher shall reimburse KARCUS for its expenses in responding to Publisher's requests under this Section if it exceeds USD$100.
The publisher will be responsible for any and all charges levied by their bank or PayPal for receiving the funds in their account.
Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Website(s), (ii) any material to which Users can link through Publisher's Website(s), and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend, and hold harmless KARCUS and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively "KARCUS Parties") harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") incurred by, or imposed or asserted against, the KARCUS Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Website(s); (b) any breach by Publisher of any duty, representation or warranty under this Agreement; (c) any breach by KARCUS of any duty, representation, or warranty to provide Ad(s) for placement on Publisher's Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from the Publisher's Website(s); or (e) gross negligence or willful misconduct by Publisher.
Limitations of Warranties and Liability
- Disclaimer of Warranties: ALL SERVICES PROVIDED BY KARCUS ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KARCUS MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. KARCUS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
- Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL KARCUS BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF KARCUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL KARCUS'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST KARCUS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
- Consideration: PUBLISHER ACKNOWLEDGES THAT KARCUS HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
11. Term and Termination
- Termination: This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads for KARCUS. KARCUS reserves the right to terminate any Publisher from the Network at any time, with or without cause.
- Post-termination: Upon termination, Publisher agrees to immediately remove from the Websites any and all KARCUS Code and Network IP supplied to Publisher by KARCUS. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.