Advertiser Agreement

Date of Last Revision: July 26, 2011.
1. Introduction

1.1 This Advertiser Agreement (“Agreement”) governs your relationship with Zenrom, Inc. (collectively “Zenrom” or “us” or “our” or “we”) when you register on our Service as an Advertiser and establish a Advertiser account (“Account”). This Agreement incorporates by reference our General Terms. Our General Terms form the foundation upon which this Agreement is based.

1.2 Our General Terms apply to any User of our Service and represent the baseline minimal terms and conditions that must be agreed to in order to use our Service. Our General Terms and what is contained herein are collectively referred to as “this Agreement.” By registering as a Advertiser on our Service you agree to be bound by the entirety of this Agreement, which includes our General Terms.

1.3 By clicking “I Agree” you are accepting THE TERMS AND CONDITIONS contained herein and you are also accepting all the terms and conditions contained in our General Terms, which have been included herein by reference. Please read our General Terms carefully before proceeding. if you do not accept all these terms and conditions then please do not register on our service.

1.4 With respect to the acceptance of this Agreement “you” or “Advertiser” means you as an individual unless you are accepting this Agreement on behalf of your employer or other entity, in which case “you” or “Advertiser” means that employer or entity.

1.5 If a conflict of terms and conditions exists between our General Terms and this document then what is contained herein controls.

2. Definitions

2.1 Capitalized terms that have not been defined herein are defined in our General Terms and have the same meaning as contained therein.

2.2 Operational

   (a) Account: is the method by which an Advertiser or Publisher gains access to our Service as defined in our General Terms.

   (b) Advertisement: means content supplied by an Advertiser to our Service which can be selected by a user as a Link, or otherwise used to promote an Advertiser’s goods or services on a Property.

   (c) Advertiser Funds: means the amount(s) pre-paid by Advertiser to Zenrom prior to the time that Advertisements start to run on Properties. Funds must be replenished by Advertiser over time as existing funds are depleted by CPC charges. Funds may be replenished at any time but must be replenished once the Funds Threshold is reached.

   (d) Advertiser’s Page: means the web page referenced via a Link contained within Zenrom Content on a Property as designated by the Link’s uniform resource locater (“URL”).

   (e) Approved Advertisement: means an Advertisement that Zenrom has reviewed and accepted into the Marketplace.

   (f) Approved Advertiser: means an Advertiser that has been accepted into the Marketplace and whose Approved Advertisements may run on one or more Properties.

   (g) Approved Property: means that a Property has undergone Verification and that Zenrom has designated it as a high quality content Property.

   (h) Approved Publisher: means a Publisher that has one or more Approved Properties in the Marketplace.

   (i) Click: means the affirmative selection of Zenrom Content on a Property by a user.

   (j) Cost Per Click (“CPC”): means the amount of money in U.S. dollars (“USD”) that an Advertiser pays each time a user Clicks on an Advertisement. The CPC charge is immediately deducted from Advertiser Funds.

   (k) Confidential Information: means any written information or information that is stored by electronic means which (i) relates to this Agreement, (ii) is received by one of the parties from the other and (iii) is marked "Confidential," "Proprietary" or bears a marking of like import or which the Disclosing Party states in writing at the time of transmittal to, or receipt by, the Receiving Party is to be considered confidential.

   (l) Disclosing Party: means the party providing Confidential Information.

   (m) Funds Threshold: the level of Advertiser Funds, as determined by Zenrom in its sole discretion, below which Advertisements will no longer run on Properties until Advertiser Funds are replenished.

   (n) Intellectual Property Rights: means all rights of design and authorship, all copyrights, all trademarks and service mark rights, all patent rights, all rights in trade secret and proprietary information, all rights of attribution and integrity and other moral rights, and all other intellectual property rights of any type.

   (o) Link: means a reference to an Advertiser’s Page as contained within Zenrom Content on a Property.

   (p) Marketplace: means the features and functions provided by our Service that match the needs of Advertisers with content provided by Approved Publishers for the purpose of serving Approved Advertisements on one or more Properties.

   (q) Moral Rights: means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty.

   (r) Property: means a Publisher’s content, as contained within its website’s pages, including all designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement included therein, under a single top level domain name.

   (s) Receiving Party: means the party receiving confidential information.

   (t) Registration: means the process that Zenrom provides for establishing an Account on our Service.

   (u) Zenrom Content: means Advertisements and/or Links contained within code provided by Zenrom to Publisher for insertion on a Property including, but not limited to, any JavaScript or similar programming contained therein.

   (v) Trade Secret: means any oral, written, or documentary information or information that is stored by electronic means that: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

   (w) Verification: means the approval process that Zenrom uses, in its sole discretion, to ensure that a Property meets certain criteria including, but not limited to: 1) obtaining metrics regarding a Property’s traffic using third party information and information provided by Publisher during Registration; 2) ensuring that the Property is not purchasing third party traffic; and 3) ensuring that the Property meets all of Zenrom’s quantitative and subjective criteria. Verification is done on a Property by Property basis.

3. Registering as an Advertiser

3.1 Advertiser acknowledges and agrees that participation in the Marketplace provided by our Service is subject to Zenrom’s approval and Advertiser’s continued compliance with the terms and conditions of this Agreement.

3.2 Advertiser acknowledges and agrees that it shall only register a single Account on our Service, unless otherwise agreed to in writing by Zenrom. Zenrom may terminate this Agreement immediately, as provided for herein, should an Advertiser attempt to register more than one Account.

3.3 Advertiser represents and warrants that (a) all of the information provided by Advertiser to Zenrom during Registration on our Service is correct and current; (b) Advertiser is the owner or licensor of all Intellectual Property Rights pertaining to Advertisements submitted to our Service or Advertiser is legally authorized to act on behalf of the owner or licensor of such Advertisements for the purposes of this Agreement and the Service; and (c) Advertiser has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of Advertiser hereunder.

4. Advertisement Implementation and Operation

4.1 Advertiser agrees to comply with the specifications provided by Zenrom from time to time to enable proper delivery, display, tracking, and reporting of Approved Advertisements on Properties.

4.2 Advertiser acknowledges and agrees that Zenrom Content: (i) shall only be displayed in connection with Properties, each of which is subject to Verification by Zenrom in its discretion at any time; and (ii) shall be subject to the placement guidelines set forth by Zenrom now or in the future.

4.3 Advertiser acknowledges and agrees that Zenrom controls the timing and placement of Approved Advertisements on Properties in its sole discretion. An Approved Advertisement generally starts running on Properties within one business day of approval, but is not guaranteed to do so.

4.4 Advertiser agrees to direct to Zenrom, and not to Publisher, any communication regarding Zenrom Content displayed in connection with a Publisher’s Properties.

5. Responsibility for Advertisements

5.1 Advertiser acknowledges and agrees that it is solely responsible for the creation of Advertisements and for ensuring that Advertiser has not violated any third party Intellectual Property Rights contain therein. Zenrom shall have no responsibility for the creative pertaining to said Advertisements.

5.2 Advertiser acknowledges and agrees that its Advertisements do not now, and shall not in the future, violate United States Code Title 18 § 2257 and its corresponding regulations contained within Title 28 Code of Federal Regulations § 75 (collectively the “Child Protection and Obscenity Enforcement Act” or “CPOEA”). Specifically Advertiser must keep, and forward to Zenrom, all records required to be maintained by the CPOEA, for each Advertisement that falls under the CPOEA’s purview. Zenrom will reject all Advertisements wherein the required CPOEA records have not been forwarded.

5.3 Zenrom reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to, any violations of applicable law, or any engagement in any activity prohibited by this Agreement.

6. Restricted Uses and License Grant

6.1 Advertiser shall not, and shall not authorize any party to: (a) use any automated means or form of scraping or data extraction to access, query or otherwise collect Zenrom Content or advertising related information from any Property except as expressly permitted by Zenrom; or (b) advertise anything illegal or engage in any illegal or fraudulent business practice.

6.2 Advertiser asserts that it holds all Intellectual Property Rights in Advertisements and hereby grants to Zenrom and Approved Publishers a nonexclusive, worldwide, transferable and fully paid license to all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Advertisements needed for Zenrom and Approved Publishers to operate the Marketplace (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 Advertisements) in connection with this Agreement.

7. Representations

7.1 Advertiser represents and warrants that (a) all Advertiser information in its Account is complete, correct and current; and (b) any use hereunder of Advertisements will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation Intellectual Property Rights).

7.2 Advertiser acknowledges that a violation of the foregoing may result in immediate termination of this Agreement or Advertiser’s Account without notice and may subject Advertiser to legal penalties and consequences.

8. Term and Duration

8.1 The term of this Agreement shall commence on the date an Advertiser first accepts this Agreement, or accepts a modified Agreement, as provided for in our General Terms. This Agreement will remain in full force and effect until it is terminated by either party as provided for herein.

8.2 Advertiser acknowledges and agrees that payments made by Advertiser to Zenrom constitute a separately enforceable addendum to this Agreement and shall survive the termination of this Agreement.

8.3 Advertiser acknowledges and agrees that the mutual obligations to maintain Trade Secrets and Confidential Information are in effect in perpetuity or to the extent allowed by applicable law.

9. Termination

9.1 Either party may terminate this Agreement as provided for in the Section. Advertiser may stop displaying Advertisements on any Property with or without cause. Advertiser may terminate this Agreement with or without cause at any time by sending written notice of Advertiser’s desire to cancel its participation in our Marketplace. This Agreement will be deemed terminated within ten (10) business days of Zenrom’s receipt of Advertiser’s notice. Zenrom may, at any time in its sole discretion, terminate all or part of Advertiser’s participation in our Marketplace, terminate this Agreement, or suspend or terminate the participation of Advertiser in any Property, for any reason or no reason.

9.2 Upon termination of this Agreement for any reason, Sections 4.4, 7, 11, 13, 14, 15 and 17 shall survive termination. Further, all clauses in this Agreement that have been expressly designated as surviving termination shall do so, notwithstanding the fact that said clauses were not enumerated in this paragraph.

10. Payments

10.1 Advertiser acknowledges and agrees that an Advertiser’s Account must be pre-funded before Advertisements start to run on Properties and that Advertisements will stop running when the Funds Threshold is reached, until such time as Advertiser Funds are replenished. The Funds Threshold may change from time to time, however the current amount is always available on the Service via the Advertiser’s Account. Advertiser must pre-fund its Account in U.S. dollars and via the payment methods provided by the Service, or via any other method to which the parties mutually agree to in writing.

10.2 Advertiser acknowledges and agrees that CPC charges will be deducted from Advertiser’s funds as they are incurred when a user Clicks on an Advertisement. CPC charges are calculated on a basis solely determined by our Service and may fluctuate according to a number of Service criteria (see the Advertiser FAQ). If Advertiser disputes any charges made by Zenrom regarding participation in our Marketplace then Advertiser must notify Zenrom in writing within sixty (60) days of any such charges; failure to so notify Zenrom shall result in the waiver by Advertiser of any claim relating to any such disputed charges. Charges shall be calculated solely based on records maintained by Zenrom.

10.3 Advertiser acknowledges and agrees that payment is due Zenrom according to the terms and conditions contained herein and that no compensation is due Zenrom otherwise. Payments made to Advertiser by Zenrom, and any information related thereto, under this Agreement, are for Advertiser’s use only and shall be treated as Zenrom Confidential Information, not to be revealed to third parties without Zenrom’s express written consent, unless required by applicable law.

10.4 Advertiser acknowledges and agrees that a non U.S. Advertiser is responsible for any merchant fee levied by our Payment Processor, wire fee that may be levied by Advertiser’s bank, and for any other payment transaction charges that may be incurred. Zenrom will deduct these fee(s) from Advertiser Funds, thereby reducing the amount of Advertiser Funds available for CPC charges. 10.5 Zenrom acknowledges and agrees that in the event this Agreement is terminated, Zenrom shall pay Advertiser its unused Advertiser Funds within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated, following the receipt of a valid termination notice as provided for herein. In no event, however, shall Zenrom make payment for any unused Advertiser Funds less than $5.00 or if the Advertiser is in material breach of this Agreement at the time of termination.

11. Confidentiality

11.1 Either party to this Agreement may, in the course of fulfilling its terms, need to disclose information to the other party that is proprietary or confidential.

11.2 The terms Confidential Information and Trade Secrets do not include information that: (a) is already known to the Receiving Party as evidenced by prior documentation thereof; or (b) is or becomes publicly known through no wrongful act of the Receiving Party; or (c) is rightfully received by the Receiving Party from a third party without restriction and without breach of this Agreement or any other agreement; or (d) is approved for release by written authorization of the Disclosing Party.

11.3 The Receiving Party shall not disclose to others, or use for any purpose of its own, any Confidential Information, financial or business data, technical data, or other confidential or proprietary information obtained from the Disclosing Party, or from an affiliated entity of the Disclosing Party, as a result of work done pursuant to this Agreement, or generated or developed in the performance of work under this Agreement.

11.4 The Receiving Party agrees not to use for any purpose whatsoever or to disclose Trade Secrets at any time during or after the term of this Agreement or until such Trade Secrets lose their status as such by becoming generally available to the public by independent discovery, development, or publication.

11.5 The covenants regarding Confidential Information and Trade Secrets will apply to any Confidential Information or Trade Secrets disclosed to the Receiving Party by the Disclosing Party before or after the date of this Agreement and remain in full force and effect after termination of this Agreement.

11.6 Advertiser acknowledges and agrees that its business relationship with Zenrom shall be kept confidential, to the extent allowed by applicable law including, but not limited to: (a) payments made by Advertiser to Zenrom and the method by which said payments are calculated; (b) knowledge of the operation of Zenrom’s Service as obtained via Advertiser’s Account; and (c) all communications and interactions between Zenrom and Advertiser regardless of form, including Transmissions as defined within our General Terms.

12. Independent Contractor

12.1 Neither party nor any of its personnel shall be considered as an agent or employee of the other party. It is understood and agreed that Zenrom is an independent contractor regarding its relationship with Advertiser.

12.2 Zenrom shall have full control over, and responsibility for, the manner and means by which our Service is provided to Users and can make changes to the functions and features of the Service as it sees fit and in its sole discretion.

13. No Warranty and No Guarantee

13.1 ZENROM MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISEMENTS, LINKS, ZENROM CONTENT AND OTHER FEATURES AND FUNCTIONS PROVIDED BY OUR SERVICE, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADVERTISEMENT AND LINKS ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-ZENROM CONTENT, ZENROM SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADVERTISEMENTS AND LINKS.

13.2 Zenrom makes no guarantee regarding the level of impressions of AdVERTISEMENTS or clicks, oR the timing of delivery of such impressions and/or clicks. To the fullest extent permitted by law, ZENROM 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 ON any Property; (iv) clicks; (v) conversions or other results for any adVERTISEMENTs; (vi) the accuracy of PUBLISHER data (e.g. reach, size of audience, demographics or other purported characteristics of audience); and (vii) the adjacency or placement of adVERTISEMENTs within a PrOPERTY. ADVERTISER understands that third parties may generate impressions or clicks on ADVERTISER's adVERTISEMENTs for prohibited or improper purposes, and ADVERTISER accepts the risk of any such impressions and clicks.

13.3 In addition, for the avoidance of doubt, Zenrom does not guarantee the SERVICE will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of advertiser’S equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Zenrom’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Zenrom (or its wholly owned subsidiaries) or advertiseR’S servers are located or co-located.

14. Limitations of Liability

14.1 EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR ADVERTISER’S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO OUR SERVICE, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL 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) ZENROM'S AGGREGATE LIABILITY TO ADVERTISER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY ADVERTISER TO ZENROM DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS LESS.

14.2 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.

15. Force Majeure

Neither party shall be responsible for (or be deemed in breach or default hereof as a result of) delays or failures in performance hereunder to the extent that such party was hindered in its performance by any act of God, war, terrorism, civil commotion, application of any law or regulation or other act of any governmental officer or personnel, labor dispute, or any other occurrence beyond the reasonable control of such party.

16. Notices

All notices hereunder (other than payment) shall be in writing and delivered personally or sent via facsimile, by certified mail, return receipt requested, email (return receipt requested) or by a reputable courier service to the address of the principal place of business of the party to be notified or to the address provided to our Service during registration, if no principal place of business can be determined.

17. Zenrom’s Rights

17.1 Advertiser acknowledges that Zenrom owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to our Service (including all of Zenrom's related technology not licensed from third parties), and that Advertiser shall not acquire any right, title, or interest in or to same.

17.2 Advertiser shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Zenrom intellectual property including, but not limited to, software and/or documentation.

17.3 Advertiser shall not create or attempt to create a substitute or similar Service through use of or access to Zenrom’s proprietary information related thereto. Advertiser shall not remove, obscure, or alter Zenrom's copyright notice or other proprietary rights notices affixed to or contained within any Zenrom Content, software, or documentation.

17.4 Zenrom may retain and use, subject to the terms of Zenrom’s Privacy Policy, and what is contained in this Sub-Section, all information Advertiser provides to our Service, including, but not limited to, all information provided by Advertiser during Registration.

18. Resolution of Conflict

Both parties agree, during a thirty (30) day period after notice is given to the other party of a dispute under the terms of this Agreement, to use its best efforts to resolve any dispute through good faith negotiations prior to invoking the remedies provided for in our General Terms, unless the Intellectual Property Rights of either party are threatened or Advertiser is in violation our User Conduct Restrictions or Restricted Uses.
Footer Image