FLASH ADS AND REVENUE TERMS AND CONDITIONS PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE NEWGROUNDS REVENUE OR FLASH ADS PROGRAMS. PARTICIPATION IN THE REVENUE OR FLASH ADS PROGRAMS INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN REVENUE OR FLASH ADS PROGRAMS.
Introduction. This agreement ("Agreement") between You and Newgrounds.com Inc. ("Newgrounds") consists of these Revenue and Flash Ads (the "Program") Standard Terms and Conditions ("Terms and Conditions"). A description of the Program, as generally offered by Newgrounds, is available at the Newgrounds Monetization Wiki URL, located at http://www.newgrounds.com/wiki/creator-resources/monetization. "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Program Participation. Participation in the Program is subject to Newgrounds' prior approval and Your continued compliance with this agreement. Newgrounds reserves the right to refuse participation to any applicant or participant at any time in its sole discretion. By enrolling in the Program, You represent that You are at least 18 years of age and agree that Newgrounds may serve (a) third party and/or Newgrounds provided advertisements and/or other content (such third party provided advertisements, Newgrounds provided advertisements and other content, collectively, "Ads"). If You use your Account to participate in the Program (i.e. for the purpose of displaying Ads on a Property), then such use of the Program will be governed by the terms of this Agreement.
2. Implementation and Operation of Ads. You agree to comply with the specifications provided by Newgrounds from time to time to enable proper delivery, display, tracking, and reporting of Ads in connection with Your Property(ies), including without limitation by not modifying the ActionScript or other programming provided to You by Newgrounds in any way, unless expressly authorized in writing by Newgrounds (including by electronic mail).
3. Communications Solely With Newgrounds. You agree to direct to Newgrounds, and not to any advertiser, any communication regarding any Ad(s) or Link(s) displayed in connection with Your Property(ies).
4. Parties' Responsibilities. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Newgrounds's specifications, and adherence to the terms of this Agreement. Newgrounds 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 Ads or to complete any Referral Event, or any engagement in any activity prohibited by this Agreement. Newgrounds is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Newgrounds. In addition, Newgrounds shall not be obligated to provide notice to You in the event that any Ad is not being displayed properly to, or Referral Event is not being completed properly by, end users of the Property(ies).
5. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, Referral Events, or impressions of or clicks on any Ad (including without limitation by clicking on "play" for any Flash Ad) 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 tools; (ii) edit, modify, filter, truncate or change the order of the information contained in any Ad, or remove, obscure or minimize any Ad, in any way without authorization from Newgrounds; (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 ("Advertiser Page"); (iv) redirect an end user away from any Advertiser Page; 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 and the Advertiser Page; or otherwise provide anything other than a direct link from an Ad to an Advertiser Page; (v) display any Ad(s) on any Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content; (vi) directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in, any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement; (vii) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads or any part, copy, or derivative thereto; (viii) act in any way that violates any Program Policies posted on the Newgrounds Web Site, as may be revised from time to time, or any other agreement between You and Newgrounds; (ix) disseminate malware; (x) create a new account to use the Program after Newgrounds has terminated this Agreement with You as a result of your breach of this Agreement; or (xi) engage in any action or practice that reflects poorly on Newgrounds or otherwise disparages or devalues Newgrounds' reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
6. No Guarantee. Newgrounds makes no guarantee regarding the level of impressions of Ads or clicks on any Ad, the timing of delivery of such impressions and/or clicks, the completion of Referral Events, or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Newgrounds does not guarantee the Program 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 equipment, systems or local access services, (iii) for maintenance or (iv) relating to events beyond Newgrounds' 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 Newgrounds or Your servers are located or co-located.
7. No Warranty. Newgrounds MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS AND LINKS ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-Newgrounds CONTENT, Newgrounds SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS AND LINKS.
8. Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (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) NEWGROUNDS' AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY Newgrounds TO PUBLISHER DURING THE THREE 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.
To ensure proper payment, You are solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. A 1099 form will be issued for payments exceeding $600 in a given calendar year. 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. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Program. Newgrounds may change its pricing and/or payment structure at any time. If You dispute any payment made under the Program, You must notify Newgrounds in writing within thirty (30) days of any such payment; failure to so notify Newgrounds shall result in the waiver by You of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Newgrounds. No other measurements or statistics of any kind shall be accepted by Newgrounds or have any effect under this Agreement. The payments made under this Agreement are for use by You only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by Newgrounds (including by electronic mail). From time to time Newgrounds may be holding funds, payments and other amounts due to You in connection with the Program. You acknowledge and agree that Newgrounds may, without further notice to You, eliminate all funds, payments and other amounts related to the Program that are held by Newgrounds and that are due to you (if any), but which Newgrounds is unable to pay or deliver to You because Your account is Inactive (as defined below). "Inactive" means that, based on Newgrounds' records: (a) for a period of two (2) years or more You have not logged into your account or accepted funds, payments or other amounts that Newgrounds has attempted to pay or deliver to You, and (b) Newgrounds has been unable to reach You, or has not received adequate payment instructions from You, after contacting You at the address shown in Newgrounds' records.
10. Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Newgrounds to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder.
11. Your Obligation to Indemnify. You agree to indemnify, defend and hold Newgrounds, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
12. Newgrounds Rights. You acknowledge that Newgrounds owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Newgrounds's ad serving technology, referral technology, including implied licenses, and excluding items licensed by Newgrounds from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Newgrounds services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Newgrounds's copyright notice, or other proprietary rights notices affixed to or contained within any Newgrounds services, software, or documentation. "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 re-instatements thereof, now or hereafter in force and effect worldwide.
14. Miscellaneous. This Agreement shall be governed by the laws of Pennsylvania, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Philadelphia, Pennsylvania. 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. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Newgrounds. 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. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Newgrounds. Notwithstanding the foregoing, Newgrounds may assign this Agreement to any affiliate at any time without notice. The relationship between Newgrounds and You is not one of a legal partnership relationship, but is one of independent contractors.