Terms & Conditions
1. Your Acceptance
- Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version https://www.omnivirt.com/tos. OmniVirt may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
- These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. “Content” includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of OmniVirt, including but not limited to all products, software and services offered via the OmniVirt website, such as the OmniVirt channels, the OmniVirt "Embeddable Player," the OmniVirt "Uploader" and other applications.
- The Service may contain links to third party websites that are not owned or controlled by OmniVirt. OmniVirt has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, OmniVirt will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve OmniVirt from any and all liability arising from your use of any third-party website.
3. OmniVirt Accounts
- In order to access some features of the Service, you will have to create a OmniVirt Account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify OmniVirt immediately of any breach of security or unauthorized use of your account.
- Although OmniVirt will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of OmniVirt or others due to such unauthorized use.
4. General Use of the Service—Permissions and Restrictions
OmniVirt hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
- You agree not to distribute in any medium any part of the Service or the Content without OmniVirt's prior written authorization, unless OmniVirt makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).
- You agree not to alter or modify any part of the Service.
- You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means OmniVirt may designate.
- You agree not to use the Service for any of the following commercial uses unless you obtain OmniVirt's prior written approval:
Prohibited commercial uses do not include:
- the sale of access to the Service;
- the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
- the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from OmniVirt appears on the same page and is of sufficient value to be the basis for such sales.
If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the OmniVirt website.
If you use the OmniVirt Uploader, you agree that it may automatically download and install updates from time to time from OmniVirt. These updates are designed to improve, enhance and further develop the Uploader and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit OmniVirt to deliver these to you) as part of your use of the Uploader.
You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the OmniVirt servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, OmniVirt grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. OmniVirt reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
In your use of the Service, you will comply with all applicable laws.
OmniVirt reserves the right to discontinue any aspect of the Service at any time.
- uploading an original video to OmniVirt, or maintaining an original channel on OmniVirt, to promote your business or artistic enterprise;
- showing OmniVirt videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or
- any use that OmniVirt expressly authorizes in writing.
5. Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
- The Content on the Service, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to OmniVirt, subject to copyright and other intellectual property rights under the law.
- Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a "download” or similar link displayed by OmniVirt on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of OmniVirt or the respective licensors of the Content. OmniVirt and its licensors reserve all rights not expressly granted in and to the Service and the Content.
- You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
- You understand that when using the Service, you will be exposed to Content from a variety of sources, and that OmniVirt is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against OmniVirt with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless OmniVirt, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6. Your Content and Conduct
- As a OmniVirt account holder you may submit Content to the Service, including videos and user comments. You understand that OmniVirt does not guarantee any confidentiality with respect to any Content you submit.
- You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to OmniVirt all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
- For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to OmniVirt, you hereby grant OmniVirt a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and OmniVirt's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that OmniVirt may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
- You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant OmniVirt all of the license rights granted herein.
- OmniVirt does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and OmniVirt expressly disclaims any and all liability in connection with Content. OmniVirt does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and OmniVirt will remove all Content if properly notified that such Content infringes on another's intellectual property rights. OmniVirt reserves the right to remove Content without prior notice.
7. Account Termination Policy
- OmniVirt will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
- OmniVirt reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. OmniVirt may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
8. Digital Millennium Copyright Act
- If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
You may direct copyright infringement notifications to our DMCA Agent at 280 Palm ave, Millbrae, CA 94030, email: [email protected] For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to OmniVirt customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, OmniVirt may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at OmniVirt's sole discretion.
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, OmniVirt, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. OmniVirt MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. OmniVirt DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND OmniVirt WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10. Limitation of Liability
IN NO EVENT SHALL OmniVirt, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT OmniVirt SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by OmniVirt from its facilities in the United States of America. OmniVirt makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless OmniVirt, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
12. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OmniVirt without restriction.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over OmniVirt, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and OmniVirt that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. These Terms of Service, together with the Privacy Notice at https://www.omnivirt.com/tos/privacy
and any other legal notices published by OmniVirt on the Service, shall constitute the entire agreement between you and OmniVirt concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and OmniVirt's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. OmniVirt reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND OmniVirt AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You hereby represent and warrant that you are authorized by the publisher that is entering into this Agreement (Publisher) to bind the Publisher to the terms and conditions of this Agreement and will be deemed to have separately entered into this Agreement with Social Nation, Inc. (OmniVirt), a Delaware Corporation.
SECTION 1. CAMPAIGN GENERALLY
1.2 During the "Term" (as defined below), Publisher shall run, place and display the Ad Units only on web sites and mobile applications owned, operated and/or controlled by Publisher (Publisher Sites), using any "OmniVirt Integration" (defined below) and in compliance with the terms and conditions of this Agreement and applicable laws. Publisher will not run, place, display or link Ad Units on or to any web site or mobile application (including Publisher Sites) that contains indecent, obscene or pornographic material, hate speech, offensive or illegal subject matter, or that relates to illegal or misleading activities.
1.3 For the purposes hereof, "OmniVirt Integration" is defined as the process by which connection and communication to the OmniVirt server is made for purposes of delivering or serving Ad Units to Publisher Sites. A OmniVirt Integration becomes available, either via the OmniVirt Software Development Kit, by API Server Integration, or by HTML Insertion Code, either of which is licensed to Publisher hereunder. For the purposes hereof:
1.3.1 "OmniVirt Software Development Kit" (hereafter, OmniVirt SDK) is defined and licensed hereunder as the compiled or source code version of the licensed computer software programs provided by OmniVirt for downloading and use for the sole purpose of connecting Publisher Sites to the OmniVirt servers for the purposes of delivering Ad Units.
1.3.2 "API Server Integration" (hereafter API Integration) is defined and licensed hereunder as programmatic API calls used for communicating with the OmniVirt servers for the sole purpose of requesting, delivering and transmitting Ad Units to the Publisher Sites.
1.3.3 "OmniVirt HTML Insertion Code" (hereafter HTML Insertion Code) means the software code licensed hereunder and made available by OmniVirt on the Publisher Portal from time to time for the sole purpose of delivering or serving Ad Units to Publisher Sites. HTML Insertion Code includes, but is not limited to, OmniVirt Tags (as described below) incorporated therein.
1.3.4 "OmniVirt Tags" means scripts made available by OmniVirt on the Publisher Portal from time to time that are designed to be inserted into the HTML code of web pages within Publisher Sites, which scripts communicate with servers designated by OmniVirt and request transmission from those servers of Ad Units.
1.4 Publisher's use of any OmniVirt Integration will not violate any third party restrictions that may exist. Further, Publisher shall not alter, sell or disclose the OmniVirt Integration, or any component thereof, in any way without OmniVirt's prior written consent. Publisher understands, agrees, and accepts that any source code licensed by OmniVirt to Publisher shall be used by Publisher solely for the purposes of serving Ad Units as described in this Agreement.
1.5 Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (a) operate Publisher Site(s), (b) use the OmniVirt Integration, (c) display/serve the Ad Units, and (d) access and use the Publisher Portal. OmniVirt will provide reasonable assistance to implement the OmniVirt Integration. Notwithstanding the previous sentence, Publisher is solely responsible for ensuring that such hardware, software, networks, systems and third-party services are compatible with the Publisher Portal, OmniVirt Integration and the Ad Units, and OmniVirt makes no representation or warranty (express or implied) regarding any such compatibility.
SECTION 2. OBLIGATIONS OF THE PARTIES
2.1 OmniVirt will host, serve, deliver, and track responses to OmniVirt and third party advertisements provided by OmniVirt by means of the OmniVirt Integration, which may include display advertisements, other creative elements and intellectual property, links, banners, buttons, and other promotional features (collectively defined as Ad Units), on or through the Publisher Sites that Publisher and OmniVirt designate in the Publisher Portal from time to time to display the Ad Units in accordance with the terms of this Agreement (the Program Sites). This arrangement will be referred to herein as the "Program".
2.2 Subject to the terms and conditions of this Agreement, OmniVirt hereby grants Publisher a limited, nonexclusive, non-sublicensable, non-transferable right during the Term to use the OmniVirt Integration methods for the purpose of displaying Ad Units, in each case on the Program Sites in connection with the Program and in accordance with the terms of this Agreement and applicable laws. OmniVirt hereby reserves all rights in and to the OmniVirt Integration that are not expressly granted to Publisher hereunder.
2.3 Publisher agrees that OmniVirt will serve the Ad Units to the Program Sites. Publisher agrees to comply with the specifications provided by OmniVirt from time to time to enable proper delivery, display, tracking, and reporting of the Ad Units in connection with the Program Sites, by not modifying the embed code or other programming in the OmniVirt HTML Insertion Code in any way, unless expressly authorized in writing by OmniVirt.
2.4 Publisher acknowledges and agrees that Publisher is solely responsible for the Publisher Sites, including all content and materials, and maintenance and operation thereof; the proper implementation of OmniVirt's specifications; and adherence to the terms of this Agreement. Publisher agrees to direct to OmniVirt, and not to any person or entity, any communication regarding any Ad Unit displayed in connection with the Publisher Sites. OmniVirt reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access or modify Ad Units or to fabricate, simulate, distort or improperly increase any Revenue Event (as defined below), or any activity prohibited by this Agreement. OmniVirt is not responsible for or liable for anything related to the Publisher Sites, including without limitation the receipt of requests from end users of the Publisher Sites or the transmission of data between the Publisher Sites and OmniVirt. OmniVirt shall not be obligated to provide notice to Publisher in the event that any Ad Unit is not being displayed properly to, or Revenue Event is not being completed properly by, end users of the Program Sites. A "Revenue Event" means a purchase of, or generation of a lead for the sale of, products or services (by or to end users of the Program Sites) through and by means of the Ad Units displayed by Publisher on the Program Sites, if such purchase or lead generation occurs during the Term and results in OmniVirt's actual receipt of Advertising Revenues under OmniVirt's agreement with the applicable advertiser, which Revenue Events may include without limitation clicks, impressions, or installations. Publisher acknowledges and agrees that Publisher is solely responsible for accuracy of payee information entered into the Publisher Portal and any payment(s) remitted by OmniVirt to the specified payee listed in the Publisher Portal shall fulfill OmniVirt's obligation for such payment(s).
SECTION 3. PROHIBITED USES
Publisher shall not, and shall not authorize, encourage or permit any third party to: (i) directly or indirectly generate Revenue Events, or impressions of or clicks on any Ad Unit, through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated requests, and/or the unauthorized use of other optimization services and/or software; (ii) edit, modify, filter, or change the order of the information contained in, any Ad Unit, or remove, obscure or minimize any Ad Unit in any way; (iii) frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of an Ad Unit (Advertiser Page); (iv) redirect an end user away from any Advertiser Page, or provide a version of the Advertiser Page that is different from the page an end user would access by going directly to the Advertiser Page; intersperse any content between the Ad Unit and the Advertiser Page; or otherwise provide anything other than a direct link from an Ad Unit to an Advertiser Page; (v) display or create a link to any Ad Unit on any error page on any chat page, in any email, or on any Web page that contains any pornographic, hate-related, copyright-infringing, violent, or illegal content; (vi) directly or indirectly access, launch, and/or activate Ad Units through or from, or otherwise incorporate the Ad Units in, any software application, web page, or other means other than the Program Sites, and then only to the extent expressly permitted by this Agreement; or (vii) crawl, spider, index or in any non-transitory manner store or cache information obtained from any Ad Units or Revenue Events, or any part, copy, or derivative thereto. Publisher acknowledges that: OmniVirt reserves the right to decide whether Web page violates these Terms and Conditions; any violation or attempted violation of any of the foregoing is a material breach of this Agreement. Publisher shall not retain or use any non-public or personally identifiable information provided by end users of the Program Sites on Advertiser Pages or otherwise through or in connection with Ad Units. Publisher will handle and protect all non-public or personally identifiable information provided by end users of the Program Sites in accordance with all applicable laws.
SECTION 4. TERM AND TERMINATION
4.1 The term of the Agreement (the Term) shall begin on the date you accept and agree to be bound by this Agreement as provided above and continue until termination as provided in this Section 4.
4.2 Copyright Violation. OmniVirt may terminate Publisher Account and access rights of any repeat infringer.
4.3 Termination for Convenience. Either party may terminate the Agreement for convenience upon at least 24 hours prior written notice to the other party.
4.4 Effect of Termination. Upon termination of this Agreement by any party for any reason, all of Publisher s rights and licenses under this Agreement, including (without limitation) with respect to the use of Ad Units and OmniVirt Integration, shall terminate and Publisher shall immediately disable any OmniVirt Integration implemented hereunder. However, Sections 5, 6, 7, 8, 9, and 12-15 shall survive termination of the Agreement. Publisher understands and agrees that it shall be responsible hereunder for any failure by Publisher to disable any OmniVirt Integration as set forth in the first sentence of this Section 4.3.
SECTION 5. CONFIDENTIALITY
Publisher agrees not to disclose OmniVirt Confidential Information without OmniVirt's prior written consent. OmniVirt "Confidential Information" means any and all non-public, confidential or proprietary information of OmniVirt, its affiliates, or their respective advertisers, customers and clients, and includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation, and other intellectual property, used in or relating to the Program (collectively the Advertising Companies Technology); (b) click-through rates or other statistics relating to performance in the Program provided to Publisher by OmniVirt; (c) any other information designated in writing by OmniVirt as Confidential or an equivalent designation; (d) any and all plans, strategies, tactics, policies, resolutions, inventions, patents, trademarks, service marks, copyrights, copyrightable material, trade secrets, know how, technical information, technical drawings and designs, patent or trademark applications and other intellectual property and similar rights of OmniVirt or its affiliates (OmniVirt IP), (e) any and all marketing information, sales or product plans, prospects and market research data of OmniVirt or its affiliates, (f) any and all financial information, cost and performance data and any debt arrangements, equity ownership or securities transaction information of OmniVirt or its affiliates, (g) any and all personnel information, personnel lists, resumes, personnel data, organizational structure, compensation and performance evaluations of OmniVirt or its affiliates, (h) any and all customer, advertiser, vendor or supplier information of OmniVirt or its affiliates, and (i) any other information of whatever nature, including, without limitation, information which gives to OmniVirt or its affiliates an opportunity to obtain an advantage over its competitors who or which do not have access to such information. Publisher may accurately disclose the amount of payments received by it pursuant to the Program. OmniVirt Confidential Information does not include information that has become publicly known through no breach by Publisher, or information that has been (i) independently developed without access to OmniVirt Confidential Information, as evidenced in writing; (ii) rightfully received by Publisher from a third party who or which is not subject to a duty of confidentiality to OmniVirt or its affiliates; or (iii) required to be disclosed by law or by a governmental authority.
SECTION 6. ADVERTISING CONTENT
Publisher acknowledges and agrees that Ad Units may include links to other websites or resources, and that OmniVirt has no control over (and is merely a passive conduit with respect to) any Ad Units or such websites or other resources that may be submitted or published by any advertiser or third party. OmniVirt is not responsible for the availability of such third party external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such third party external websites, Advertiser Pages or resources (Third Party Content). Publisher acknowledges and agrees that OmniVirt shall have no responsibility or liability whatsoever for any damage, loss, cost, expense, claim or liability caused, incurred or alleged to be caused or incurred by or in connection with use of or reliance on any content, goods or services available on or through any website, Advertiser Page or resource, whether third party or internal to OmniVirt. All correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Ad Units, the Program and any Third Party Content or internal content to OmniVirt, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Publisher (or Publisher s end users) and such advertiser.
SECTION 7. NO WARRANTY
No Warranty. OmniVirt MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE AD UNITS, THE OmniVirt HTML INSERTION CODE, OmniVirt SDK, API INTEGRATION, OR THE PROGRAM, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. WHETHER OR NOT AD UNITS ARE BASED ON OmniVirt OR NON-OmniVirt CONTENT, THE PARTIES AGREE OmniVirt SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF OR FAILURE TO DISPLAY SUCH AD UNITS.
SECTION 8. LIMITATIONS OF LIABILITY
EXCEPT FOR THE OBLIGATIONS UNDER SECTIONS 5 AND 12, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS) WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) OmniVirt S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY OmniVirt TO PUBLISHER DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST OmniVirt UNDER OR PURSUANT TO THIS AGREEMENT MORE THAN THREE (3) MONTHS AFTER THE END OF THE TERM.
SECTION 9. REVENUE SHARE
9.1 OmniVirt will pay Publisher a portion of the Advertising Revenues (as defined below) that OmniVirt actually receives for the Revenue Events completed during the Term. All payments to Publisher by OmniVirt shall be made in United States Dollars. Payments to Publisher by OmniVirt shall be monthly during the Term unless otherwise approved by OmniVirt. OmniVirt may change the pricing, payment structure, payment timing and/or other payment terms applicable to this Agreement at any time in its sole discretion, and OmniVirt shall make reasonable efforts to ensure revenues payable to Publisher are reflected in a Publisher reporting interface on the Publisher Portal. If Publisher does not agree to OmniVirt's payment structure or payment terms under or in connection with this Agreement, as in effect from time to time, Publisher's sole remedy shall be to terminate this Agreement as provided in Section 4. "Advertising Revenues" means the payments actually received by OmniVirt from an advertiser by reason of a Revenue Event that occurs during the Term, excluding (and net of) any applicable taxes, chargebacks, refunds and other adjustments (including without limitation for undelivered or misdelivered impressions), any costs of collection, and any third party commissions, referral fees and revenue shares (including without limitation agency fees).
9.2 Notwithstanding anything to the contrary herein, OmniVirt shall not be liable for any payment based on: (a) any amounts that result from invalid Revenue Events, or invalid clicks or impressions on Ad Units generated by any person, bot, automated program or similar device, as reasonably determined by OmniVirt, including without limitation through any clicks or impressions (i) originating from Publisher s IP addresses or computers under Publisher s control, (ii) solicited by payment of money, false representation, or request for end users to click on Ad Units, or (iii) solicited by payment of money, false representation, or any illegal or otherwise invalid request for end users to complete Revenue Events; (b) clicks co-mingled with a significant number of invalid clicks described in (a) above, or as a result of any breach of this Agreement by Publisher. OmniVirt reserves the right to withhold payment or charge back Publisher s account the amounts due to any of the foregoing or any breach of this Agreement by Publisher, or pending OmniVirt's reasonable investigation of any of the foregoing or any breach of this Agreement by Publisher, or in the event that an advertiser whose Ad Units are displayed in connection with the Program defaults on payment for such Ad Units to OmniVirt. If Publisher is past due on any payment to OmniVirt (pursuant to this Agreement or otherwise), OmniVirt reserves the right to (x) withhold payment to Publisher under this Agreement until all outstanding payments by Publisher have been made, or (y) reduce and offset amounts owed by OmniVirt to Publisher by amounts owed by Publisher to OmniVirt.
9.3 Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with its participation in the Program, including with respect to all payments made to it pursuant to this Agreement. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account, including without limitation for U.S. taxpayers: a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers: a fully-completed Form W-8BEN, or other form, and a signed certification by the Publishers stating the Publishers Foreign Status as required by U.S. tax authorities. If OmniVirt believes it is obligated to obtain tax information from Publisher and Publisher does not provide this information after OmniVirt has requested it, OmniVirt may withhold payments until Publisher provides this information or otherwise satisfies OmniVirt that Publisher is not a person or entity from whom OmniVirt is required to obtain tax information. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment.
9.4 If Publisher disputes any payment made under the Program, Publisher shall notify OmniVirt in writing within thirty (30) days of any such payment; failure to so notify OmniVirt shall result in the waiver by Publisher of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by OmniVirt. No other measurements or statistics of any kind shall be accepted by OmniVirt or have any effect under this Agreement. The payments made under this Agreement are payable to the Publisher only, and may not be transferred or assigned in any manner, or passed on to any third party (including distributed to web sites owned, operated and/or controlled or managed by Publisher that require separate payments) unless expressly authorized in writing by OmniVirt.
9.5 OmniVirt makes no guarantee regarding the number, timing, or completion of Revenue Events, or regarding the amount of any payments, individually or in the aggregate, to be earned by or paid to Publisher under this Agreement. SECTION 10. PUBLICITY Publisher agrees that during the term of this Agreement, OmniVirt may use Publisher’s name and logo in presentations, marketing materials, customer lists, financial reports, and web page listings. SECTION 11. REPRESENTATIONS AND WARRANTIES Publisher represents and warrants that (a) all of the information provided by Publisher to OmniVirt to enroll in the Program is correct and current; (b) Publisher is the owner of each Publisher Site or controls such Publisher Site and is legally authorized to act on behalf of the owner of such Program Sites for the purposes of this Agreement and the Program; (c) Publisher has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of Publisher hereunder; and (d) Publisher has complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CANSPAM Act of 2003 and any relevant data protection or privacy laws) in its performance of any acts hereunder. Publisher further represents and warrants that throughout the term of this Agreement the Publisher Sites and all material displayed thereon: (i) do and will continue to comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent or illegal in content.
9.6 Publisher portion of Advertising Revenue will only be paid when Publisher balance is above the minimum requirements stated on the “Request Payout” page. OmniVirt does not owe Publisher any Advertising Revenue if the Publisher portion of the Advertising Revenue is less than the minimum requirement
SECTION 12. INDEMNIFICATION
Publisher agrees to indemnify, defend and hold OmniVirt, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including without limitation applicable advertisers, syndication partners, licensors, licensees, consultants and contractors) (each, an Indemnified Person ) harmless from and against any and all liabilities, losses, claims, costs and expenses (including damage awards, settlement amounts, and reasonable legal fees), incurred or suffered by any Indemnified Person(s), arising out of, related to or in connection with (a) Publisher s use of the Ad Units, OmniVirt Integration, the Publisher Portal, or the Program, (b) the Publisher Sites, and/or (c) Publisher's breach of or performance under any term of this Agreement.
SECTION 13. OmniVirt RIGHTS
Publisher acknowledges that OmniVirt owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program and all related elements (including but not limited to the Advertising Companies Technology (including OmniVirt Integration), Ad Units and OmniVirt IP, excluding only items licensed by OmniVirt from third parties. Publisher will not acquire any right, title, or interest in or to the Program or any related elements (including but not limited to the Advertising Companies Technology (including the OmniVirt Integration), Ad Units and OmniVirt IP), whether or not licensed by OmniVirt from third parties (collectively, Excluded IP), except as expressly set forth in Section 2.2 of this Agreement. Publisher will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or advertising or marketing techniques from any Excluded IP, or create or attempt to create a substitute or similar service or product through use of or access to the Program or Excluded IP. Publisher will not remove, obscure, or alter any Excluded IP. Intellectual Property Rights means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide. To the extent that Publisher or its affiliates or any of their respective employees, agents or representatives, makes any modifications, changes, customizations, improvements, enhancements or other derivative works from, based upon or using and Excluded IP (collectively, Derivative Works), Publisher hereby agrees that title to and ownership of all such Derivative Works and all goodwill related thereto (including without limitation all intellectual property rights) shall vest in OmniVirt. Publisher hereby assigns all right, title, and interest in and to all such Derivative Works and all related goodwill to OmniVirt and its successors and assigns forever. Whenever Publisher is requested to do so by OmniVirt, during or after the Term, Publisher shall, and shall cause its affiliates and their respective employees, agents or representatives to, promptly execute and deliver any and all applications, assignments or other documents or instruments deemed necessary or advisable by OmniVirt to apply for and confirm and effectuate full and exclusive ownership of such Derivative Works and all associated goodwill in OmniVirt, including, but not limited to, ownership of any moral rights under the copyright law of any nation, or any other rights under the intellectual property laws of any nation. The obligations set forth in this Section 13 shall be binding upon the successors, assigns, and legal representatives of Publisher.
SECTION 14. MISCELLANEOUS
This Agreement shall be governed by the laws of the State of California. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated exclusively in the State and federal courts located in San Mateo, California. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise provided in Section 9, any modifications to this Agreement must be made in writing and executed by both parties. The failure to require performance of any provision shall not affect a party s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. Publisher may not resell, assign, or transfer any of Publisher s rights hereunder without the prior written consent of OmniVirt. Any such attempt without OmniVirt’s consent shall be void. The relationship between OmniVirt and Publisher is not one of a legal partnership relationship, but is one of independent contractors. This Agreement may be executed in one or more counterparts, each executed counterpart (including counterparts delivered by facsimile, e-mail or otherwise) to be deemed an original instrument, and all such counterparts together to be deemed but one agreement. In case any provision of this Agreement shall be invalid, illegal or unenforceable, such provision shall be deemed to be deleted, but the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and entered into on their behalf by their duly authorized representatives.
Dated: June 25, 2017