Gather Advertiser Agreement

Gather Inc. Advertiser Agreement

Gather Inc. Advertiser Agreement

Welcome to the Gather Advertising service ("Gather Advertising" or the "Service"), a service of Gather Inc. ("Gather"). Before you participate in the Service, please review this Advertiser Agreement (the "Agreement"). This Agreement is between you and Gather and it is important that you understand this Agreement prior to participating in the Service. When you click on the "I Accept" button below you agree to the terms of the Agreement. If you do not agree to all of the terms of the Agreement, click on the "I Decline" button below. If you do not accept the terms of this Agreement, you will not be entitled to participate in the Service (please refer to paragraph 13 below for additional terms regarding your electronic signature).

Definitions and Policies
In this Agreement, (a) "Advertiser," "you" and "your" means collectively the Advertiser and its Affiliates who participate in the Service, and (b) "Affiliate" means, as to any person or entity, an entity or person that directly or indirectly (e.g. through one or more tiers of ownership) controls, is controlled by or is under common control with that person or entity, and (c) the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities or a written voting rights agreement. The use of the Service is subject to all applicable Gather guidelines, policies and terms of service, including without limitation the Gather Editorial Guidelines (http://advertiser.gather.com/pages/AdEditorialGuidlines.jsp ), Gather Terms of Service (http://www.gather.com/userTerms.jsp) and the Gather Privacy Policy (http://www.gather.com/privacy.jsp). Gather's guidelines, policies and terms of service may be altered at anytime.
The Service
The Service allows you to access certain Gather web sites that allow you to create your own ads, choose keywords to help Gather match your ads to your target audience, and pay, via credit card, only when someone clicks on one of your advertisements. Please understand that Gather targets advertisements according to both its users' personal profiles and their recent activities on Gather's web sites. You hereby acknowledge and agree that Gather is not responsible for the success of your ad campaign and you are solely responsible for all: (a) keywords and targeting options that you choose; (b) all ad content and ad URLs, whether generated by or for you; and (c) web sites proximately reachable by your ad URLs and their related products and services. You agree that your ads, domain names and URLs may be included in the Service and made generally available to other users of the Service. You also agree to flag any advertisements for products or services that are limited by age and/or are adult, mature, or sexually explicit in nature, including but not limited to advertisements for alcohol or medications
1. Registration
  You will select a username, password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of your username, password and account, and are fully responsible for all activities that occur under your username, password or account.
2. Duty to Notify
  You agree to (i) immediately notify Gather of any unauthorized use of your username, password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. Gather cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph (b).
Payment
1. Credit Card Payments
  Your credit card will be charged based on the amount of actual clicks on your ads and in accordance with the budgets you establish in your advertising campaigns. You will pay all charges in U.S. dollars. Charges are exclusive of taxes. You are responsible for paying (a) all taxes and government charges, and (b) any reasonable expenses and attorney fees Gather incurs collecting late amounts and/or charge backs. You waive all claims relating to charges unless claimed within 60 days of the date of the charge (this does not affect your credit card issuer rights). Charges are solely based on Gather�s click measurements. Refunds (if any) are at the discretion of Gather and only in the form of an advertising credit for the Gather Sites (as defined below). You acknowledge and agree that any credit card and related billing and payment information that you provide to Gather may be shared by Gather with companies who work on Gather�s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Gather and servicing your account. Gather reserves the right to issue you an invoice, payable immediately, if you fail to pay any amounts owed to Gather or provide Gather with an invalid credit card. Gather may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Gather shall not be liable for any use or disclosure of such information by such third parties.
2. Payment Terms
  In certain instances, Gather may grant payment terms to a credit-approved Advertiser. In such event, Advertiser agrees to pay Gather the fees for the Service on a monthly basis. Advertiser also agrees to pay any sales, use, or other tax that may be applicable to the Service. Payment terms are net cash within thirty (30) days of Advertiser�s receipt of invoice. The invoice will confirm the Services utilized and the amount due each month. All invoices are payable in U.S. dollars. If the Advertiser fails to pay any invoice within 60 days of receipt, compound interest will be paid at the rate of 1.5% per month.
Access and Prohibited Uses
1. Access
  For purposes of this Agreement, all web pages that are owned or operated by, or on behalf of, Gather shall be referred to as the "Gather Sites". You are hereby authorized to access and use the Service and certain of the Gather Sites during the term of this Agreement solely for internal use in the management of your advertising accounts. You shall not allow any unauthorized third parties to access the Gather Sites or use the Service and you agree not to disseminate any usernames, passwords or access codes to your account.
2. Prohibited Uses
  You shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions or clicks; (b) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where your ad is displayed; (c) use any automated means, including agents, robots, scripts, or spiders, to access or manage your account with Gather or to monitor or copy the Gather Sites or the content contained in the Gather Sites; (d) engage in "ad slamming" of any nature, including the repeated clicking on advertisements to increase potential earnings to you as a publisher, to increase potential costs to an advertiser, or for any reason other than viewing an advertisement as a potential consumer; (e) display any ads for tobacco or tobacco-related products; or (f) display any advertisements for products or services that compete with Gather's products and services.
Your Site
You agree that Gather is not responsible for the content, maintenance, or operation of your Web site(s), or Web sites owned or operated by any third party. You represent, warrant and covenant that: (a) all information you provide or approve or that is provided on your behalf in connection with the Agreement and on your Web site is, and will be updated to remain, current and accurate, (b) the Web site to which any advertisement links will work properly and not be under construction, and (c) your Web site does not contain any Gather-owned or licensed content, except pursuant to a separate signed agreement with Gather.
Representations and Warranties
You represent, warrant and covenant that: (a) you have sufficient authority to enter into the Agreement; (b) your use of Gather's services and the Service is solely for lawful purposes; (c) you have the necessary rights to provide all information provided under the Agreement (including all content, data, data feeds, listings, titles, URLs, descriptions and keywords for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein and in any Web sites to which it links: (i) do not violate any law, statute, ordinance, treaty or regulation or Gather policy or guideline; (ii) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iv) are not false, deceptive or misleading; (v) are not defamatory, libelous, slanderous or threatening; and (vi) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any copyrighted material, system, system data or personal information; and (d) you will not engage in any form of spamming or other impermissible marketing activities through your use of the Service, including complying with all applicable laws such as the CAN-SPAM Act of 2003.
Indemnification
You agree to indemnify and hold harmless Gather and its Affiliates and its and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys and employees from and against any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees (collectively, "Claims"), that actually or allegedly result from your use of the Service or a Gather Site, your Web site, or your breach of any terms or representations, warranties, or covenants contained in the Agreement. You agree to be solely responsible for defending any Claim against or suffered by Gather, subject to Gather's right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all Claims against Gather, provided that you will not agree to any settlement that imposes any obligation or liability on Gather without Gather's prior express written consent.
Disclaimer and Limitation of Liability
1. Disclaimer
  YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE AND GATHER'S SITE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS ONLY. GATHER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. GATHER MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (IV) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. GATHER DISCLAIMS ALL GUARANTEES REGARDING POSITIONING OR THE LEVELS OF TIMING OF: (i) COSTS PER CLICK (ii) CLICK THROUGH RATES, (iii) DELIVERY OF IMPRESSIONS (iv) CLICKS OR (v) CONVERSIONS FOR ANY ADS. TO THE EXTENT THAT ANY PART OF THIS SECTION IS NOT CONSISTENT WITH ANY OTHER PART OF THESE TERMS, THEN THIS SECTION WILL CONTROL.
2. Limitation of Liability
  YOU AGREE THAT NEITHER GATHER NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, ACCOUNT PROVIDERS, SUBCONTRACTORS, LICENSORS, LICENSEES, PARTNERS, CONTRACTORS, CONSULTANTS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF GATHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE, OR ANY OTHER MATTER RELATING TO THE SERVICE.
Termination
You and/or Gather may terminate the Agreement and/or your participation in the Service, and Gather may suspend or terminate your participation with the Service or any Gather Site, including removing your listings from any Gather Site, at any time, for any reason or for no reason, and Gather shall not have any liability regarding such decisions. Upon termination, suspension or discontinuation of the Service or your participation therein, all outstanding payment obligations incurred under such Service will become immediately due and payable. Paragraph 7, 8 and 9 of this Agreement shall survive any termination of this Agreement.
Notices
Gather may provide you with notices by email, regular mail, or postings on the Service. All notices to Gather shall be sent via recognized overnight courier or certified mail, return receipt requested, to: Chief Financial Officer, Gather Inc., 85 Devonshire Street, 3rd Floor, Boston, MA 02109.
Choice of Law
This Agreement and the relationship between you and Gather shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and Gather agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Suffolk, Massachusetts.
Electronic Signature
1. Electronic Form
  This Agreement is an electronic contract that sets out the legally binding terms of your use of the Service and certain of the Gather Sites. You indicate your acceptance of the Agreement and all of the terms and conditions contained or referenced herein by clicking on the "I Accept" button in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By clicking on the "I Accept" button, you fully accept the Agreement. When you click on the "I Accept" button during enrollment, you also consent to have the Agreement provided to you in electronic form.
2. Non-electronic Form
  You have the right to receive the Agreement in non-electronic form and may request a non-electronic copy of the Agreement either before or after you electronically sign the Agreement. To receive a non-electronic copy of the Agreement, please send a letter and self-addressed stamped envelope to: Chief Financial Officer, Gather Inc., 85 Devonshire Street, 3rd floor, Boston, MA 02109. You also have the right at any time to withdraw your consent to have the Agreement provided to you in electronic form.
  - Should you choose to withdraw your consent to have the Agreement provided to you in electronic form, Gather will discontinue your then-current username and password. This means that you will not have the right to use the Service, unless, and until, we issue you a new username and password. Gather only will issue you a new username and password after we receive a signed copy of a non-electronic version of the Agreement, which we will send to you upon written request.
  - To withdraw your consent and/or request a non-electronic copy of the Agreement, please send a letter and self-addressed stamped envelope to: Chief Financial Officer, Gather Inc., 85 Devonshire, 3rd floor, Boston, MA 02109.
  - Prospective Nature. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of the Agreement provided to, and electronically signed by, you prior to the effective date of your withdrawal.
3. Access and Retention
  Access and Retention. In order to access and retain the electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and must pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including, without limitation, a computer and modem or other access device. Please print a copy of the Agreement for your records. To retain an electronic copy of the Agreement, you may save it into any word processing program. We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.