TMC Adnetwork™ Services Agreement

TMC ACTIVELY monitors traffic for fraud as described below. If we detect fraud, your account will be made inactive pending further investigation.

This TMC Adnetwork™ Services Agreement (the “Agreement”) is made and entered by and between (a) on the one hand, you or the person, entity or organization on whose behalf you accept this Agreement (“Affiliate,” “you” or “your”); and (b) on the other hand, TMC Media, with offices located at 20 bis rue Louis Philippe, 92200, Neuilly-sur-Seine, France (“TMC”) (TMC and Client, a “Party”, and together, the “Parties”). This Agreement will be effective as of the date on which you accept it electronically.

PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND TMC. Please print a copy of this Agreement for your records by selecting File > Print within your Web browser.

BY ELECTRONCIALLY ACCEPTING THIS AGREEMENT, THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS (1) THAT HE OR SHE HAS THE AUTHORITY TO BIND THE PERSON OR PARTY ENTERING INTO THIS AGREEMENT TO THIS AGREEMENT AND THE PROMISES MADE TO TMC IN THIS AGREEMENT, AND (2) THAT HE OR SHE IS AT LEAST EIGHTEEN (18) YEARS OF AGE. TMC WILL RELY ON THESE REPRESENTATIONS, AND PROVIDE THE SERVICES REQUESTED, ON THE FOLLOWING TERMS.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

In General. TMC will provide you with access to advertisements and programs (each, an “Advertisement”) made available by advertisers (each, an “Advertiser”) through the TMC Adnetwork™ network for your display on and/or in those of your web sites and newsletters approved by TMC (each, an “Advertising Location”), subject to your compliance with the terms and conditions of this Agreement. You agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to your display of advertisements made available through the TMC Adnetwork™ network shall be bound by, and shall abide by, this Agreement.
TMC Approval Required for Affiliates and Advertising Locations. All Affiliates and Advertising Locations require TMC’s prior review and approval. Only Affiliates and Advertising Locations that have been reviewed and approved by TMC are permitted to display Advertisements. TMC reserves the right to withhold or refuse approval for any Affiliate or Advertising Location for any reason whatsoever. In the event TMC does not approve the Affiliate who has entered into this Agreement, this Agreement shall automatically terminate.
Affiliate Criteria. In order to be approved as an Affiliate, your Advertising Locations must meet all of the following criteria (the “Affiliate Criteria”):
1. Each of your Advertising Locations must be content-based, not simply a list of links or advertisements;
2. Each of your Advertising Locations must not be centered around making money off of our Advertisers;
3. Each of your Advertising Locations must receive a minimum of Three Thousand (3,000) unique page views per month (you will provide page view data for your Advertising Locations to TMC upon request);
4. Each of your Advertising Locations must have a top-level domain name;
5. Each of your Advertising Locations must be fully functional at all levels (no “under construction” sites or sections);
6. Each of your Advertising Locations must not utilize or include spawning process pop-ups and/or exit pop-ups;
7. The content of each of your Advertising Locations cannot contain any adult content nor link from or to any adult materials, including without limitation (a) explicit, vulgar or obscene language, (b) posting or referencing of sexually explicit images or other offensive content, or (c) promotion of adult services, such as phone sex or escort services;
8. The content of each of your Advertising Locations cannot infringe on any intellectual property or other proprietary rights of a third party;
9. The content of each of your Advertising Locations cannot contain content or functionality deemed inappropriate by TMC including but not limited to (a) racial, ethnic, political, hate-mongering or otherwise objectionable content, (b) investment, money-making opportunities or advice not permitted under law, (c) gratuitous violence or profanity, (d) material that defames, abuses, or threatens physical harm to others or to you, (e) promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc., (f) software pirating (e.g., Warez, Hotline), (g) “hacking” or “phreaking,” (h) any illegal activity whatsoever, (i) any questionable or controversial subject matter, or (j) any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; and
10. You cannot place TMC’s Advertisements into your framed environment, unless approved by TMC in writing in advance in each instance.
Violation of Affiliate Criteria, Policies or This Agreement. TMC reserves the right to change and/or amend the Affiliate Criteria upon notice to you by email or by posting a notice on the TMC Adnetwork Affiliate interface. TMC may immediately terminate the ability for an Advertising Location to display TMC Adnetwork™ network Advertisements, or may terminate this Agreement entirely, in the event TMC determines that you or your Advertising Location (a) fails to satisfy the Affiliate Criteria, (b) are in violation of, or fail to comply with the terms of, any provision of this Agreement, of TMC policies, or of applicable laws, rules or regulations, or (c) are otherwise subjecting TMC’s business to unreasonable risk. TMC reserves sole judgment in making such determination, and you agree that TMC’s determination in this regard shall be final, binding and non-appealable.
UCE/SPAM. You cannot send Unsolicited Commercial Email (i.e., SPAM) containing, concerning or related to Advertisements. You cannot post any specific messages containing, concerning or related to Advertisements to newsgroups, chat rooms, bulletin boards or any other places unless expressly approved by TMC in writing. You can post messages which are generic in nature and do not mention any specific client or Advertisement, which are expressly approved by TMC in writing. You must be in compliance with our Policies and Guidelines posted at http://www.tmc-adnetwork.com/policies_email.html (which TMC reserves the right to change from time to time in its sole discretion, and shall notify you of such changes). Failure to comply with the terms of this section will result in termination of this Agreement. Any violation of this will result in you being liable to TMC for damages of One US Dollar (US $1) per email sent and other damages as determined by a court of law.
Use of Advertiser Trademarks. The trademarks of Advertisers are to be used only as presented within the TMC Adnetwork™ interface and contained in Advertisements, and may not be used by you for any other purpose, including but not limited to bidding on Advertiser trademarks in search engines, using Advertiser trademarks in the display URL in search marketing, and including Advertiser trademarks in Advertising Location URLs.
Fraud. You may not, under any circumstances, fraudulently add leads or clicks or inflate leads, clicks or sales by fraudulent traffic generation (including without limitation pre-population of forms or through mechanisms not approved by TMC), as determined by TMC its sole discretion. By way of example and not limitation, TMC flags accounts for fraud that: (a) have click-through rates that are much higher than industry averages and where solid justification is not evident; (b) have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (c) have shown fraudulent leads as determined by our clients; and/or (d) use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs. If TMC flags your account for fraud, TMC will hold any payments due to you in 'Pending Status' for a period of thirty (30) calendar days, during which time you may provide evidence that you are not engaging in fraud. In the event TMC determines that you are engaging in fraud and you fail to prove otherwise to TMC’s satisfaction during such period, you will forfeit your entire commission for all Advertisements and your account and this Agreement will be terminated. TMC reserves sole judgment in determining fraud, and you agree that TMC’s determination in this regard shall be final, binding and non-appealable.
Commissions. The commission payment that is earned by you on your display of an Advertisement varies per registered subscriber to the programs offered, and/or per click. Once approved as an Affiliate, the actual commission payments which you may earn for the display of an Advertisement, and any additional terms related thereto, will be provided to you through the TMC Adnetwork™ Affiliate online interface. This commission payment is made approximately thirty (30) calendar days after the end of the calendar month in which TMC receives payment from the Advertiser (delinquent Advertiser payments received by TMC will be credited to you in the month that they are received). TMC does not guarantee payment to you if an Advertiser does not pay TMC. Total unpaid commissions earned by you must exceed Hundred US Dollars (US $100) in order for TMC to make payout to you in a given calendar month; otherwise, payment will not be made until the month in which the Hundred US Dollars (US $100) minimum is reached.
Materials Displayed. You will only run approved banners and text in your display of TMC Adnetwork™ Advertisements, and will NOT create your own banners or advertising text, unless expressly approved by TMC in writing. Editing of an Advertiser's program images or copy is strictly prohibited. Affiliates will not mislead visitors to Advertising Locations to make it seem that visitors are signing up for an offer that is offered by the Affiliate site. Violation of this section will result in termination of this Agreement and your forfeiture of accrued but unpaid commissions.
Traffic Sources. Your traffic must come from relevant countries to the campaigns (for example, English related campaigns must be delivered to English speaking countries; USA-based campaigns must be delivered to USA based citizens; and so forth; Clicks coming from China for USA-based campaigns may not result in credit). TMC may monitor IP sources and will remove credit for commissions resulting from non-country relevant traffic.
Termination. TMC reserves the right to terminate this Agreement for any reason whatsoever. Notice of termination and notice of other matters pursuant to this Agreement may be provided to you via e-mail and will be effective immediately. In the event of termination, all commissions due to you will be paid during the next billing cycle following termination. In the event you engage in fraud as determined solely by TMC, you forfeit any accrued but unpaid commission payments.
Representations. You represent, warrant and covenant to TMC (a) that all content, products, and services on your website are legal to distribute and that you own or have the legal right to use any and all copyrighted material; (b) that all information provided by it is truthful, accurate, and complete, and is not misleading in any way; (c) that you will fully comply at all times with all laws, rules and regulations applicable to your business and your activities under this Agreement; (iii) that you are not be in violation of any obligation, contract or agreement by entering into this Agreement, by performing your obligations under this Agreement.
Publicity; Affiliate Information. You may not (a) publicly disclose any of the specific terms of this Agreement, (b) issue any press release regarding the subject matter of this Agreement, or (c) use TMC’s name or any of TMC’s trademarks, logos or branding, without TMC’s express prior written consent to do so. TMC may disclose your status as an Affiliate to Advertisers. TMC may disclose Affiliate information to third parties in response to subpoenas, court orders, or other legal, judicial or administrative process, requirement or order without liability to you. You hereby consent to TMC’s disclosure in such circumstances and will hold TMC harmless from and against any liability resulting from such disclosure.
Indemnity. You irrevocably covenant, promise and tinnitus sufferers agree to indemnify and hold harmless TMC, its affiliated companies, and their successors and assigns from and against and in respect of any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer, which arise, result from, or relate to (a) a breach of any of your representations, warranties or covenants set forth in this Agreement; or (b) your breach of this Agreement; or (c) your non-compliance with TMC's policies and guidelines; or (d) your business practices and/or advertising practices; or (e) copyright, slander, libel, and trademark violations; or (f) your Advertising Locations. For any legal action taken by an advertiser, agency, client, person, or entity against TMC for your actions that violate this Agreement or any TMC policies, you accept that TMC will work with the advertiser, agency, client, person, or entity to divulge your personal information. You also agree that TMC is not liable for your actions, and you will bear all costs (legal or otherwise) that TMC incurs if advertiser, client, agency, person, or entity sues TMC. You agree will pay any and all costs, damages and reasonable attorneys fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any claim, suit or proceeding subject to indemnification.
Changes. TMC reserves the right to change any conditions of this Agreement at any time. Change notices are sent to Affiliates by email or in writing, and Affiliates are responsible for complying with any changes to the contract within ten (10) calendar days from the date of change. Your failure to terminate this Agreement within such ten (10) calendar day period will constitute your acceptance of the changes to this Agreement, and you will be bound by such changes. You are responsible for ensuring that TMC has an accurate e-mail and physical address for you at all times; You agree that TMC may consider notice sent to you at the e-mail or physical address provided by you on file by TMC as validly given to you, regardless of whether such notice is returned to TMC as undeliverable.
Disclaimer; Limitation of Liability. TMC disclaims any and all warranties, express or implied, related to the services and products provided by TMC, including but not limited to the warranty of merchantability, title, non-infringement and warranty of fitness for a particular purpose. This statement expressly includes any reimbursement for losses of income due to disruption of service by TMC or its upstream providers. IN NO EVENT WILL TMC BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF TMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS AGREEMENT ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE REASONABLE, THAT THEY ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN HEREOF AND THAT ABSENT SUCH LIMITATIONS, TMC WOULD NOT ENTER INTO THIS AGREEMENT.
Inurement; No Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. You may not resell, assign, or transfer (whether directly or indirectly, in whole or in part, by operation of law or otherwise) any of your rights or obligations under this Agreement without the express prior written consent of TMC, and any attempt to do so shall be null and void and shall constitute an incurable material breach of this Agreement.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal substantive laws of France, without giving effect to its principles of conflicts of law. You submit to the exclusive jurisdiction and venue in the courts located in Paris, France and further agrees that any cause of action you may bring arising under this Agreement will be brought you exclusively in a court located in Paris, France. You agree to pay all legal expenses of TMC, including reasonable attorney's fees and costs, should you be found in breach of this Agreement.
Miscellaneous. This Agreement constitutes the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties concerning the subject matter hereof. If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. All provisions not affected by the invalidity shall remain in full force and effect. No waiver of any provision or breach of this Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

YOU HEREBY AGREE (A) TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND (B) TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES PROVIDED BY TMC. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.