Publisher Agreement

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

1.1 This Publisher Agreement (“Agreement”) governs your relationship with Zenrom, Inc. (collectively “Zenrom” or “us” or “our” or “we”) when you register on our Service as a Publisher and establish a Publisher 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 Publisher 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 “Publisher” means you as an individual unless you are accepting this Agreement on behalf of your employer or other entity, in which case “you” or “Publisher” 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’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”).

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

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

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

(g) 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.

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

(i) Earnings Per Click (“EPC”): means the amount of money in U.S. dollars (“USD”) that a Publisher earns each time a user Clicks on Zenrom Content.

(j) 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.

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

(l) 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 Advertisements on one or more Properties.

(m) 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.

(n) Payment Cycle: is defined as thirty (30) days past the close of a Work Month.

(o) 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.

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

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

(r) 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.

(s) 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.

(t) 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.

(u) Work Month: is defined as a calendar month and represents the time period that controls a Publisher’s compensation during the next Payment Cycle according to the compensation terms and conditions as provided for herein.

3. Registering as a Publisher

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

3.2 Publisher acknowledges and agrees that Zenrom will not allow it to participate in the Marketplace until it has at least one Approved Property, and that Registration as a Publisher, in and of itself, is not sufficient for Marketplace participation.

3.3 Publisher acknowledges and agrees that it shall only register a single Account on our Service and only submit one Property for Verification during Registration, unless otherwise agreed to in writing by Zenrom. Zenrom may terminate this Agreement immediately, as provided for herein, should a Publisher attempt to register more than one Account. Zenrom, in its sole discretion, may allow an Approved Publisher to submit additional Properties for Verification.

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

4. Advertisement Implementation and Operation

4.1 Publisher agrees to comply with the specifications provided by Zenrom from time to time to enable proper delivery, display, tracking, and reporting of Zenrom Content in connection with Publisher’s Properties, including without limitation by not modifying the JavaScript or other programming provided to Publisher by Zenrom in any way, unless expressly authorized in writing by Zenrom.

4.2 Publisher acknowledges and agrees that Zenrom Content: (i) shall only be displayed in connection within the 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 Publisher agrees to direct to Zenrom, and not to Advertiser, any communication regarding any Zenrom Content displayed in connection with a Publisher’s Properties.

5. Responsibility for Properties

5.1 Publisher acknowledges and agrees that it is solely responsible for the development, operation, and maintenance of Publisher’s Properties and for all materials that appear on said Properties. Zenrom shall have no responsibility for the development, operation and maintenance of a Publisher’s Properties or materials that appear on or are linked to from same, other than Zenrom Content, as applicable.

5.2 Publisher acknowledges and agrees it shall also be responsible for ensuring that materials posted on Publisher’s Properties do not violate or infringe upon any laws or the rights of any third party including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights, and ensuring that materials posted on Publisher’s Properties are not libelous or otherwise illegal.

5.3 Publisher acknowledges and agrees that its Properties 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”). Upon request from Publisher, Zenrom shall forward any CPOEA records in its possession that are relevant to Publisher’s Properties.

5.4 Publisher acknowledges and agrees that Zenrom is not responsible for the transmission of data between a Publisher’s Properties and our Service and that Zenrom is not obligated to provide notice to Publisher of any Zenrom Content that is not being properly displayed on a Publisher’s Properties.

5.5 Zenrom 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 modify Zenrom Content, or any engagement in any activity prohibited by this Agreement.

6. Restricted Uses

6.1 Publisher shall not, and shall not authorize or encourage any third party to: (i) generate Clicks on Zenrom Content 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 search requests, and/or the unauthorized use of other search engine optimization services and/or software; (ii) modify Zenrom Content in any way including, but not limited to, editing, modifying, filtering, truncating or changing the order of Zenrom Content; (iii) frame, minimize, remove or otherwise inhibit the full and complete display of an Advertiser’s Page referenced by an Advertisement contained within Zenrom Content or accessed by an end user after Clicking on any part of an Advertisement on a Publisher’s Properties; (iv) redirect an end user away from any Advertiser Page; and (v) intersperse any content between the Advertisement and the Advertiser’s Page or otherwise provide anything other than a direct Link from an Advertisement to an Advertiser’s Page; or (vi) crawl, spider, index or in any non-transitory manner store or cache information obtained from any Link.

6.2 Publisher acknowledges and agrees that any attempted or actual violation of the restricted uses enumerated in this Section is a material breach of this Agreement and that Zenrom may pursue any and all remedies at law or in equity in response to said violation. Further, Zenrom may immediately suspend or revoke Publisher’s Account and terminate this Agreement as provided for herein.

7. Term and Duration

7.1 The term of this Agreement shall commence on the date a Publisher 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.

7.2 Zenrom acknowledges and agrees that payments to Publisher constitutes a separately enforceable addendum to this Agreement and shall survive the termination of this Agreement to the extent that Publisher has not as yet received payment from Zenrom via our Payment Processor, or via any other payment method mutually agreed to by the parties in writing, on the condition that Publisher in not in material breach of this Agreement at the time of termination.

7.3 Publisher 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.

8. Termination

8.1 Either party may terminate this Agreement as provided for in the Section. Publisher may stop displaying Advertisements on any Property with or without cause at any time by removing Zenrom’s Content from a Publisher’s Properties. Publisher may terminate this Agreement with or without cause at any time by sending written notice of Publisher’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 Publisher’s notice. Zenrom may at any time, in its sole discretion, terminate all or part of Publisher’s participation in our Marketplace, terminate this Agreement, or suspend or terminate the participation of any Property in all, or part of, the Marketplace for any reason. In addition, Zenrom reserves the right to terminate or suspend, without notice, any Publisher’s Account that has not generated a sufficient number of valid clicks on Advertisements (as measured by Zenrom in its sole discretion) for a period of three (3) months or more.

8.2 Publisher acknowledges and agrees that upon termination of this Agreement, for any reason, Publisher is: (i) required to remove all Zenrom Content from Publisher’s Properties; and (ii) all compensation due Publisher, except for any earned balance accumulated by Publisher prior to termination, shall not be tracked or paid by Zenrom.

8.3 Upon termination of this Agreement for any reason, Sections 4.3, 10, 12, 13, 14 and 16 shall survive termination. Further, all clauses in the Agreement that have been expressly designated as surviving termination shall do so, notwithstanding the fact that said clauses were not enumerated in this paragraph.

9. Compensation

9.1 Publisher acknowledges and agrees that payment due to Publisher is calculated on an EPC basis as determined by our Service and will be paid by Zenrom in U.S. Dollars. If Publisher disputes any payment made by Zenrom regarding participation in our Marketplace then Publisher must notify Zenrom in writing within sixty (60) days of any such payment; failure to so notify Zenrom 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 Zenrom.

9.2 Publisher acknowledges and agrees that payment is due Publisher according to the terms and conditions contained herein and that no compensation is due Publisher otherwise. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate address, contact, and payment information in Publisher’s Account. Payments made to Publisher by Zenrom, and any information related thereto, under this Agreement, are for Publisher’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.

9.3 Publisher acknowledges and agrees that Publisher is responsible for any merchant fee levied by our Payment Processor, wire fee that may be levied by Publisher’s bank, and for any taxes that may be due regarding Publisher’s earned income whether in the U.S. or internationally. A Publisher who is a U.S. taxpayer shall provide Zenrom a valid U.S. tax identification number and a fully-completed Form W-9. A Publisher who is not a U.S. taxpayer shall provide Zenrom either a signed certification that the taxpayer does not have U.S. Activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities.

9.4 Publisher acknowledges and agrees that payment to Publisher will be made according to the timeframe defined herein and via our Payment Processor, via a wire, or via any payment method mutually agreed to in writing by the parties. Zenrom will not make a payment unless the Publisher’s outstanding earned balance is greater than one hundred dollars ($100.00). The Publisher’s first Payment Cycle will not commence until Publisher has participated in our Marketplace for a complete Work Month.

9.5 Publisher shall receive a payment related to the number of valid Clicks on Advertisements. Zenrom shall not be liable for any payment based on: (a) any amount which results from invalid clicks on Advertisements generated by any person, bot, automated program or similar device, as reasonably determined by Zenrom, including without limitation through any Clicks: (i) originating from Publisher’s IP addresses or computers under Publisher’s control, (ii) solicited on behalf of Publisher by payment of money, false representation, or request for end users to click on Advertisements; (b) Advertisements delivered to end users whose browsers have JavaScript disabled; (c) 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 for any applicable Payment Cycle.

9.6 Zenrom acknowledges and agrees that in the event this Agreement is terminated, Zenrom shall pay Publisher its earned balance 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 earned balance less than $5.00 or if the Publisher is in material breach of this Agreement at the time of termination.

10. Confidentiality

10.1 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.

10.2 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.

10.3 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.

10.4 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.

10.5 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.

10.6 Publisher 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 to Publisher by Zenrom and the method by which said payments are calculated; (b) knowledge of the operation of Zenrom’s Service as obtained via Publisher’s Account; and (c) all communications and interactions between Zenrom and Publisher regardless of form, including Transmissions as defined within our General Terms.

11. Independent Contractor

11.1 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 Publisher.

11.2 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.

12. No Warranty and No Guarantee

12.1 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.

12.2 Zenrom makes no guarantee regarding the level of impressions of AdVERTISEMENTS or clicks, on the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to PUBLISHER under this Agreement. 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 PUBLISHER’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 PUBLISHER’S servers are located or co-located.

13. Limitations of Liability

13.1 EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR PULBLISHER’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 PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY ZENROM TO PUBLISHER DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

13.2 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.

14. 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.

15. 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.

16. Zenrom’s Rights

16.1 Publisher 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 Publisher shall not acquire any right, title, or interest in or to same.

16.2 Publisher 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.

16.3 Publisher shall not create or attempt to create a substitute or similar Service through use of or access to Zenrom’s proprietary information related thereto. Publisher 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.

16.4 Zenrom may retain and use, subject to the terms of Zenrom’s Privacy Policy, and what is contained in this Sub-Section, all information Publisher provides to our Service, including but not limited to Property demographics and all information provided during our Registration process. Publisher agrees that Zenrom may transfer and disclose to third parties personally identifiable information about Publisher for the purpose of Verification, including to third parties that reside in jurisdictions with less restrictive data laws than Publisher’s own.

17. 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 Publisher is in violation our User Conduct Restrictions or Restricted Uses.
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