Publisher Membership Agreement
Publisher Membership Agreement
This Publisher Membership Agreement is between Next Bee LLC, a California Limited Liability Company (NextBee or NextBee Network) and You ("You" or Your). If You have registered for or on behalf of an entity, you are deemed to have accepted this Agreement on behalf of that entity.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
The following terms have the meanings indicated:
- A "person" is to be broadly construed and includes any natural person or entity.
- An entity means a sole proprietorship, corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by law as a legal person separate from its owners.
- "Content" means information, data, text, documents, software, music, sound, photographs, graphics and video.
- An end user means an actual or potential consumer, customer or other natural person.
- The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
- "Intellectual Property Rights" means technology, templates, designs, websites, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright and other intellectual property and proprietary rights therein and thereto.
- NextBee Related Parties means NextBee corporate affiliates and its and their contractors, licensors, licensees and suppliers.
- The phrase provided by NextBee or NextBee-provided shall, when used in relation to tools, services, resources or other offerings, encompass the provision thereof by NextBee or NextBee Related Parties.
- The phrase tracked by NextBee or NextBe Ttracked shall, when used in relation to any engagement, encompass the tracking thereof by NextBee or NextBee Related Parties.
- "Network Publisher" refers to a "person" that desires or makes itself available to be recruited or to enter into engagements to display, distribute or place "tracking links" of Network Advertisers for compensation.
- "Network Advertiser" refers to a "person" that desires or seeks to recruit Network Publishers to enter into engagements in order to display, distribute or place its "tracking links" for compensation.
- A "link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a navigation path between two websites, or (ii) otherwise causes a Web access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a web page being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked web page.
- A "tracking link" means any type or format of "link" that is provided or authorized by NextBee and Network Advertiser to be displayed or distributed pursuant to an engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such NextBee or a Network Advertiser can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. The term tracking link shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a tracking link.
- An "Advertiser Engagement" means any type of agreement or arrangement between a Network Advertiser and any Network Publisher or between NextBee and any Network Publisher that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
- A "NextBee Engagement" means any type of agreement or arrangement between NextBee and any Network Publisher that can be performed on or in relation to the Internet, including affiliate marketing, performance-based linking, insertion order, or any other type of agreement or arrangement.
- NextBee Offerings means (a) NextBee's offerings to be a Network Publisher or Network Advertiser participating on NextBee Network and (b) offerings provided by NextBee or any NextBee Related Parties in the form of technology, software, reports and databases, customer support, account management and other client services, symposia, summits and other educational and networking events, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
To use (or continue to use) any NextBee services as a Publisher, you must provide NextBee with truthful, accurate and complete registration information. If any such information changes, You must immediately update Your registration information. NextBee has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time.
Your participation as a Network Publisher is purely voluntarily and You may terminate Your participation at any time. Neither NextBee nor any Network Advertiser shall be construed or deemed as having solicited, requested or procured You or Your services to promote NextBee or any Network Advertiser or its respective trade or business, or goods, products, property, or services.
You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to NextBee, and neither Your participation on NextBee Network, use of any NextBee Offerings or receipt of payment of any compensation under any NextBee tracked engagement shall be construed or be deemed to be an inducement for, solicitation of You to provide any products or services to NextBee.
Participation in NextBee Network is not an endorsement by NextBee of any Network Advertiser or Network Publisher. NextBee operates the NextBee Network and/or provides the NextBee Offerings as a neutral host, and NextBee does not regularly or proactively monitor, regulate or police the usage thereof by any of its participants. NextBee is not responsible or liable for the acts, omissions, agreements or promises of or by any Network Advertiser, Network Publisher or other website using NextBee offerings to enter into any arrangement or otherwise work with any other person or entity.
Network Advertisers and Network Publishers are independent parties and NextBee does not and shall not have any responsibility or liability for the acts, omissions, promotions, Content or tracking links or other links of any Network Advertiser, Network Publisher or other third party, including breaches of engagements by Network Advertisers, or for screening or policing the websites or actions of Network Advertisers or Network Publishers.
NextBee shall have the right to refer to You by Your name in connection with NextBee Network and/or the performance or provision of any NextBee Offerings, including in communications sent to actual or prospective participants of the NextBee Networks in which You participate.
Nothing in this Agreement shall prevent NextBee from making any public or private statements about Your business relationship with NextBee and/or any Network Advertiser and/or Your participation in NextBee Network.
You and Your affiliates, officers, directors, employees, consultants, agents and representatives, and the conduct of Your business, Your performance under any engagements with NextBee or any Network Advertiser, and Your use of NextBee Network and/or NextBee offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees including but not limited to CAN-SPAM Act of 2003 and Downloadable Technology Compliance Standard ("DTCS") .
In addition to and without limiting Your obligations under this Agreement, Your participation may require that You enter into agreements with those Network Advertisers in whose programs you participate. In such event, the terms and conditions of each such Network Advertisers engagement
governs Your relationship with that Network Advertiser, including Your use of the tracking links associated with that Network Advertiser, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to Your promotion of such Network Advertiser or its tracking links. NextBee has no liability or responsibility to review, endorse, police or enforce any such engagements.
You will not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors
in any way; or (j) impersonation of any person, including any NextBee representative, or misrepresentation of affiliation with any person.
You will not use any NextBee Offering in connection with aggregating, soliciting or recruiting Network Advertisers, Network Publishers, other websites or other persons to form or join affiliate marketing, advertising or similar network.
You will not sublicense, rent, lease, sell, resell, outsource or service bureau any NextBee Offerings, and any attempt to do so shall be null and void.
You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any NextBee Offerings.
You will not try to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, any NextBee Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by NextBee.
You will not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with Your use of any tracking links, NextBee Network or any other NextBee Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to Your tracking links or for any other purpose.
You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Your participation in NextBee Network or in connection with any Network Advertiser's program or engagement within NextBee Network.
You have no license or right to use NextBee's name or any of its logos or trade or service names or marks, except to the extent required to be used in connection with an URL. Any press release or other public announcement by You regarding this Agreement or NextBee Network or that mentions NextBee shall require the prior written approval of NextBee. You agree that You shall not disparage NextBee or any other participants thereof.
Use of tracking links
Each tracking link used by You in relation to a NextBee Tracked Engagement must be used in the manner and format made available or otherwise dictated by NextBee that, among other things, associate such tracking link with such engagement. You will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by NextBee and/or the Network Advertiser to be used in connection with such tracking link so that it may be properly tracked by NextBee. NextBee or the relevant Network Advertiser may terminate any tracking links associated with any NextBee Tracked Engagement with which You have entered into with such Network Advertiser. NextBee may also terminate any tracking links associated with any NextBee Tracked Engagements with which You have entered into directly with NextBee. You must remove any tracking links after any termination of the corresponding engagements, including due to termination or expiration of a relevant Network Advertisers participation.
You will place or use tracking links only with the intention of delivering valid sales, leads, applications, accounts, clicks or other specified compensable tracked activities. You may not, nor knowingly permit any person to, activate a tracking link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an end user to the destination website associated with such tracking link.
NextBee's Determination Final and Binding - All determinations of tracking links and the compensation due to You made by NextBee shall be final and binding on You. NextBee is under no obligation to investigate or resolve any claim or dispute involving You and any Network Advertiser or other third party person. You acknowledge that, even if your participation in NextBee Network entails you contracting directly with NextBee for payments, such payments are ultimately tied to decisions made by Network Advertisers. If NextBee, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to You or any other party to the claim or dispute.
Reports, Data, and Payments
You acknowledge and agree that each Network Advertiser whose Program You join shall receive reports from NextBee that identify You and may include data about You and Your tracking links with that Network Advertiser. If NextBee is notified by a Network Advertiser that it believes that its reports about its relationship with You contain an error or omission or otherwise require adjustment, NextBee may elect to revise those reports as requested by the Network Advertiser and make corresponding changes to Your Reports. Since the reports NextBee provides You and such Network Advertiser are the bases for calculating the compensation, if any, due to You from that Network Advertiser, any such adjustment may affect the amount of compensation to which You are entitled.
In providing NextBee Offerings, including giving You reports on Your Network activities, NextBee relies on data provided by Network Advertisers. NextBee is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by Network Advertisers.
Any dispute between You and a Network Advertiser about any error You report must be resolved by You and that Network Advertiser. You agree that NextBee shall have no obligations and incur no liabilities to You in connection with any such dispute. You acknowledge that in NextBee Network where You do not have a contractual relationship with the Network Advertiser, the data presented to You is based on data provided to NextBee by the applicable Network Advertiser. NextBee is not liable for any errors in the data provided to NextBee by such Network Advertisers.
In certain cases, NextBee may require You to deliver, or may otherwise collect, personally identifiable information about end-users who undertake tracked activities in relation to You or any Network Advertiser. NextBee's treatment of such information is between NextBee and such end-user, and
NextBee has no obligation or liability to You in connection with its use of such information.
Data transfer, conversion, processing and storage are subject to the likelihood of human and machine errors, delays, interruptions, failures, and losses. NextBee is not liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events.
You acknowledge that, in NextBee Network when you are compensated by the applicable Network Advertiser, Your entitlement to any compensation reported with respect to any tracked activity (including if reported) is solely a function of the terms of Your agreement with the relevant Network Advertiser and that such Network Advertiser is solely responsible for its payment. NextBee is not liable or responsible for payment or collection. This is true even if NextBee performs the function of processing payments to you on behalf of Network Advertisers. You further acknowledge that, in NextBee Network when you are compensated by NextBee (not including where NextBee performs the function of processing payments to you on behalf of Network Advertisers), Your entitlement to any compensation reported with respect to any tracked activity is subject to NextBee's receipt of funds from the Network Advertiser associated with the applicable engagement giving rise to the purported compensation.
You agree that You are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with Your participation in any NextBee Offerings or any Network Advertiser engagement.
You acknowledge that in connection with Your participation on a NextBee Network and/or in one or more Network Advertisers engagements, You will be provided with confidential and proprietary data and information from time to time through reports as well as other NextBee Offerings to You through Your account area or otherwise. Such confidential and proprietary data and information may be owned variously by NextBee or Network Advertisers and/or its or their suppliers or contractors. You will retain ownership of any data and information that You independently collect through Your websites without the use of NextBee Offerings, provided that any data and information that may be provided by You to NextBee shall be deemed to be covered by the licenses granted to NextBee under this Agreement.
You or NextBee may, at any time, with or without cause, terminate this Agreement and Your participation in NextBee Network or use of any other NextBee Offering.
Upon termination of this Agreement and/or Your participation on NextBee Network: (a) You shall immediately cease to use and remove from any and all website(s), whether or not owned or operated by You, any and all tracking links and all other Content or materials provided to You in connection with Your participation on NextBee Network or Your use of any other NextBee Offerings. (b) Any and all licenses and rights granted to You under this Agreement shall immediately cease and terminate. (c) Any and all confidential or proprietary information of NextBee (including as applicable any confidential or proprietary information of Network Advertisers as and to the extent originally provided by NextBee) that is in Your possession or control must be immediately returned or destroyed. If requested, You will certify in a writing signed by You or an authorized officer as to the return or destruction of all such confidential or proprietary information.
NextBee may withhold and offset against any and all compensation and/or other fees that are then unpaid to You. Following assessment of any fees or other charges owing to NextBee, and subject to NextBee holding any amount it determines in its sole discretion to be needed to support any of Your indemnification and/or other obligations and/or liabilities under this Agreement, NextBee may refund any remaining amount to any of the Network Advertisers with which You had entered into a NextBee Tracked Engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that NextBee or any Network Advertiser may have in contract, at law or in equity.
All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. Any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. Your representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration or termination of this Agreement.
Any Network Advertiser's participation in NextBee Network may end or be suspended for a number of reasons, including expiration or early termination of its agreement with NextBee, and You shall not necessarily receive any prior notice that such Network Advertiser's participation is ending. If a Network Advertiser's participation in NextBee Network ends or is suspended for any reason, its program conducted through such NextBee Network shall end or be suspended and NextBee may, without notice to You, terminate or suspend all tracking links that You have with that Network Advertiser immediately or, in NextBee's discretion, at any time thereafter. NextBee shall have no obligation or liability to You because of any such termination or suspension of any Network Advertiser.
DISCLAIMER OF WARRANTIES
NEXTBEE NETWORK AND NEXTBEE OFFERINGS ARE PROVIDED "AS IS, WHERE IS" AND "AS AVAILABLE." EACH OF NEXTBEE AND NEXTBEE RELATED PARTIES HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, MERCHANTABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF NEXTBEE NETWORK OR ANY NEXTBEE OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY NETWORK ADVERTISER WILL BE AVAILABLE (INCLUDING IN THE EVENT OF BEING TERMINATED FOR WHATEVER REASON FROM NEXTBEE NETWORK) OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT WITH YOU.
LIMITATION ON LIABILITY
If You reasonably determine that any NextBee's Offering does not materially meet NextBee's obligations under this Agreement, then You must notify NextBee in writing within five (5) days of receiving any such allegedly nonconforming services. Your failure to so notify NextBee on a timely basis shall mean that You accept such services, and NextBee shall thereafter have no liability whatsoever with respect to such services. If upon receipt of any notice, NextBee may, at its sole discretion, fix the issue with the service in question or otherwise provide You with any substitution or replacement services in lieu thereof. Any action or provision of substitute or replacement services or repetition of services/tasks shall in no event be construed as an admission that the original service was nonconforming or otherwise improper, and Your acceptance of the same constitutes Your sole remedy and in such case constitutes NextBee's maximum liability for any such alleged breach of this Agreement.
IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON NEXTBEE OR NEXTBEE RELATED PARTIES, THEN YOU AGREE THAT THE TOTAL LIABILITY OF NEXTBEE AND NEXTBEE RELATED PARTIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,SUBCONTRACTORS AND REPRESENTATIVES, TO YOU WILL NOT EXCEED TWENTY FIVE DOLLARS ($25.00). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT NEXTBEE IS PROVIDING THIS SERVICE TO YOU AT NO CHARGE TO YOU. NONE OF NEXTBE AND NEXTBEE RELATED PARTIES WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PERSON WAS AWARE THAT SUCH DAMAGES COULD RESULT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless NextBee and NextBee Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on: (a) any misrepresentation or breach of any representation, warranty, or covenant made by You in this Agreement, (b) any conduct, or activity, error or omission by You, including in relation to Your participation on NextBee Network, performance of any NextBee Tracked Engagement, or otherwise, (c) any violation by You of any law, regulation or rule, (d) Your use of any other NextBee Offerings, and/or (e) any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person.
NextBee may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by You. NextBee may participate in the defense of all claims as to which it does not assume defense and control, and You shall not settle any such claim without NextBee's prior written consent.
NextBee may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any of the terms of service. Also without prior written notice, NextBee may add, remove, suspend or discontinue any aspect of NextBee Network or any other NextBee Offering. YOUR CONTINUED USE OF NEXTBEE NETWORK AND/OR NEXTBEE OFFERING SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT WITH NEXTBEE NETWORK AND/OR NEXTBEE OFFERING AND CEASE USING NEXTBEE NETWORK AND ANY ASSOCIATED NEXTBEE OFFERING.
You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to its conflicts of law principles. You consent to the personal and exclusive jurisdiction of the Federal and California State courts sitting in California, U.S.A.. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
NextBee may provide notices to You by posting notices or links to notices in Your account area. Notices to You also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record in NextBee Network. If you provide notice to NextBee, such notice shall be sent, to: P.O. Box 1419 Moutain View, CA 94042. U.S.A. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of NextBee.
Representations and Warranties
You represent, warrant and covenant as follows: (a) You have the legal right to conduct any business conducted by You including in respect of any website(s) participating in NextBee Network; and (b) Any and all information You provided as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by NextBee; and (c) This Agreement has been duly and validly authorized, accepted, executed and delivered by You (or Your authorized representative) and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; and (d) The performance by You of this Agreement and the participation by You in NextBee Network and any relevant Network Advertisers engagement does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to You or (ii) if You are an entity, any provision of Your certificate of incorporation or other organizational documents.
The parties are independent contractors and nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect. This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
Last Modified: January 23rd ,2009
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