TERMS OF SERVICE
This Terms of Service Agreement ("Agreement") governs your participation in Voodoo.com Domain Monetization Program ("Program"). By participating in or using the services or features of the Program, you agree to be bound by this Agreement.
We reserve the right to change this Agreement from time to time at our sole discretion, and your continued participation in the Program will be subject to the most current version posted on our Website at the time of your use.
1. DOMAIN MONETIZATION/DESCRIPTION OF SERVICES
1.1 Voodoo.com is a service which provides a platform for advertising links on parked pages, thereby allowing domain name owners to generate a portion of the revenue generated from such links on a pay per click basis. This service is contingent upon appropriate incoming traffic and your continued compliance with this Agreement.
1.2 We reserve the right to revoke your privileges, terminate your account, or take any other measures deemed to be appropriate (as determined by us in our sole and absolute discretion) to enforce this Agreement.
2.1 The following capitalized words and phrases shall have the following meanings in throughout this Agreement:
a. "Excluded URLs" shall mean all Removed URLs and all Inappropriate URLs
b. "Removed URL" shall mean any URL that has been removed from participation in the Program upon notification to you.
c. "Inappropriate URL" shall mean any URL and any content or information at that URL, except any Licensed Material, for which we have reason to believe that:
i. you do not have the right to use or to associate data with that URL;
ii. you do not have appropriate rights to reproduce and distribute any of the content (other than the Licensed Materials) available at that URL;
iii. the URL violates the trademark (or other related rights), copyright, trade secret, patent or other right of any third party;
iv. the URL violates any applicable law or is subject to an injunction;
v. the URL is libelous, defamatory or obscene;
vi. if the content available at the URL includes software, it contains a virus, worm or other code that could be damaging or harmful to computer software or systems, or stored information; or
vii. the URL is contrary to our policies for similar implementations of any Program services, and we have provided notification to you.
2.2 The following serve as examples (but not represent a complete, exhaustive or whole list) of URLs and URL content that are contrary to our policies and therefore fall within the definition of Inappropriate URLs. This includes, but is not limited to the correct or incorrect spelling and variations of the following:
i. trademarks, company names, and names of specific natural persons;
ii. defamatory, libelous, or threatening language;
iii. vulgar or obscene language;
iv. torture or language that would advocate torture;
v. rape or language that would advocate rape;
vi. any other content that is otherwise illegal.
d. "Landing Page" shall mean a Web page containing (i) our or our licensors search box, (ii) links approved by us, or (iii) any other content required or approved by us.
e. "Licensed Materials" shall mean any links, content or marks (including, without limitation, trademarks) provided by us as part of the Program.
f. "Clicks" shall mean a click by an End User. "Clicks" do not include clicks which are invalid as determined by our internal tracking system or for which the Program does not recognize revenue from its advertiser partners. Invalid Clicks may include clicks (1) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (2) multiple clicks on the same advertisement within a brief period of time, or (3) that an advertiser receives and rejects for a valid business purpose (e.g., a Click which was not generated by an End User).
g. "End User" means a bona fide Internet user. An "End User" excludes any person or any mechanical, artificial or fraudulent means (such as a so-called robot, spider, software or scraper) lacking an intention to purchase, sign up or otherwise act upon a product or service of the marketer contained on a Landing Page or Search Results Page.
h. "Landing Page" means an html page or a framed html page hosted by or on behalf of Program displaying search links, search results and/or other content from Program servers or such servers as Program uses.
i. "Partner Site" means any website associated with a domain name owned by a Partner.
j. "Revenue" means estimated gross revenue to be received by Program Sponsor for a particular calendar month as a direct result of Clicks on an advertisement or other promotional link attributable to traffic from Landing Pages or Search Results Pages hosted on a Partner Site pursuant to the Program as reported by Program Sponsor's upstream advertiser partners as of the end of such calendar month (plus or minus any bad debt, net credits or returns from previous periods) less any amount Program determines, in its sole discretion, was the result of improper use of Partner Sites and as such revenue is otherwise calculated or adjusted by Program to take into account (i) any exclusions set forth in these Terms of Service, (ii) the results of Program traffic quality scoring process and (iii) any other adjustments made by Program in its sole discretion. Program may exclude from Revenue monies from traffic that originates from countries where traffic is, in the sole discretion of Program, suspect or difficult to track in the normal course of business or is determined to be invalid on a consistent and regular basis by Program or its upstream advertiser partners.
k. "Search Results Page" means an html page hosted by or on behalf of the Program displaying search results pulled from our servers (or such other servers as the Program elects to use), which has resulted from a typed in search or a keyword click from and only from a Landing Page.
2.3 All technical and industry terminology not defined herein will have the meanings generally accepted in the internet and software industry.
3. ENROLLMENT & ACCOUNT ACCESS
3.1 You will be required to create an account in order to use the Program. You are responsible for selecting and continuously managing your password and security settings to protect your account and your domain monetization settings from unauthorized changes. You are entirely responsible for maintaining the confidentiality and secrecy of your password and account security settings. All consequences of your voluntary disclosure of your password and account information as well as all activities that occur in your account are your responsibility.
3.2 You agree to notify us immediately of any unauthorized use of your account or any other breach of security. You agree that you will be solely responsible for all activity that arises from your account, whether initiated by you or by a third party on your behalf, and we shall be entitled to rely on any requests which have been initiated from your account. We are not liable for any activity occurring with your account, whether or not initiated or authorized by you.
3.3 Some third party providers of advertisements will not allow us to place their advertisements on your parked pages unless we disclose certain account information of yours to them. You agree to allow us to disclose your account information, including, but not limited to: email, name, phone number and address to third party providers of advertisements for parked pages.
4.1 We will pay you a commission of net revenue we receive on the basis of your participation in the Program in accordance with the following:
a. the commission, which is a percentage of the net revenues earned, shall be determined by us based on your Domain Name portfolio in the Program;
b. we determine such commissions in tiers and such tiers shall be determined by the size, source and quality of your Domain Name portfolio in the Program;
c. we will pay all amounts related to the Program in U.S. currency only, thirty (30) business days after the end of each calendar month for all commissions earned by you for which we have actually received payment from our licensors and suppliers during the prior month less any amount we determine, in our sole discretion, was not validly earned from proper use of any of your websites or any Domain Names, including, without limitation, as described in the "Abusive, Inappropriate or Invalid Traffic" section below; and
d. Payment will be issued via PayPal, direct deposit, check or wire. Our wire transfer charges will be paid by us, and any intermediary or bank charges from you will be at your expense. We are not responsible for the acts, omissions, failures or policies of any financial institution involved in any financial transaction involving you. For PayPal and direct deposit payments, no payment to you will be issued for any amount payable that is less than twenty (US $20.00); for checks, no payment will be issued for any amount less than one hundred dollars (US $100.00); and for wires no payment will be issued for any amount that is less than one thousand (US $1,000.00). Any unpaid earnings will be held until the next payment date after the month in which the total amount due is accumulated.
e. Prior to receiving payment, you must provide us with correct payment information and completed and verifiable tax requirements.
f. You understand and agree that we shall not be responsible for determining or withholding taxes or any other obligation and that you are solely responsible for any local, state, federal, and/or foreign taxes on income received from the Program.
g. You will indemnify, defend and hold harmless us, our directors, officers, agents, and employees from and reimburse us for any claim, damages, penalty, fees, cost or assessment arising out of or in connection with your use of the Program, including, tax payments levied by any national, state, and/or local taxing authority, and any other amounts arising from your participation in the Program.
h. Upon any expiration or termination of this Agreement we will determine the revenue share unless both parties come to a new written agreement.
i. As long as you are in compliance with this Agreement, you shall have the right, at your cost and exercisable not more than one time during the term of the Agreement and up to one month following the term of the Agreement, to audit our records related to your supported search advertising revenue excluding any information which we reasonably determine is not permitted by law or otherwise subject to disclose. All information obtained, received, derived or learned during such audit shall be the Confidential Information belonging to us, and you shall use such information for no purpose other than determining amounts paid or owed under this Agreement, and shall not disclose or permit any party or person to disclose such Confidential Information, including any third party auditor.
j. Any payments to be made by us to the you shall be made from monies actually received by us for your domain name traffic.
k. Notwithstanding any other term hereof, nothing herein shall be construed to guarantee that (a) any particular third party entity will be, or remain, during any time under this Agreement, a supplier, vendor or licensor of any advertising or monetization services; or (b) any, or any amount of, traffic, revenue, profit, sums or business will result from the use of the services provided by the Program.
l. The parties hereby agree that, at any time during the term of this Agreement, the amounts, percentages, revenues or business received by the Program from any entity providing advertising or from which any amount, revenue or business is derived, shall be subject to change, and that any such change shall not be a breach of this Agreement.
4.2 You acknowledge that, in addition to any other remedies at law that we may have, failure by you to comply with any or all of the terms in this Agreement may result in the forfeiture by you of any yet unpaid commissions.
5. RESTRICTIONS ON SERVICES/ ABUSIVE, INAPPROPRIATE, OR INVALID TRAFFIC
5.1 You May Not:
b. Lure, induce, entice, incentivize or trick visitors to your website into clicking on your hyperlinks;
c. Password protect any search results page accessed through your website in response to a valid internet search or query;
d. Click on your own domains' advertiser links (self-clicking) or ask family, friends, or acquaintances to visit your domains and click on the advertiser links;
e. Mislead visitors to your website into believing that they shall receive anything other than an internet search by clicking on a text link or search box or otherwise encourage End Users or other persons, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, in our judgment.
f. You may only use the media that is provided by the Program and may not change, alter, delete or obscure any User query, any Program ad code or the manner of presentation of any Program link in any way without prior written approval by us.
g. Program ad code must be found on all referring pages.
h. We reserve the right to terminate your account if your account is idle for more than thirty (30) consecutive days at any time provided that we will notify you seven (7) days in advance of termination.
6. INAPPROPRIATE URLS AND EXCLUDED URLS
6.1 You shall not deliver traffic from Inappropriate URL's or Excluded URL's.
6.2 You shall ensure that a Domain Name does not and will not include any Excluded URLs. You shall review all URLs prior to directing Users who access such URLs to the Landing Page to make certain that such URLs are not Excluded URLs. You shall not direct Excluded URLs to any page that is associated with you, or on which the Licensed Materials or a link to your services are available. If any Domain Name includes URLs that fit the definition of "Excluded URLs", then, within one (1) business day you shall:
a. cease to provide the Landing Page in connection with that URL;
b. remove any links or Licensed Materials from any Domain Name or Web pages associated with that Excluded URL;
c. dissociate the Excluded URL from your services so that the URL redirect no longer makes any Licensed Materials available when a User's browser points to that URL.
6.3 We shall have the right to require that any Removed URL cease redirecting Users to the Landing Page or to the Program services or web sites. We may designate an entire domain name in which all URLs under that domain must be removed and all such URLs under such domain shall be included within the definition of Removed URLs and shall be an Excluded URL. Once per month, you shall deliver to us a list of all Excluded URLs. Within 24 hours of a request, you shall deliver to us a list of all URLs owned or operated by you and associated with the Program, and broken out by those URLs that are Excluded URLs.
6.4 If you direct any User of an Excluded URL or Inappropriate URL to a Landing Page, to any of your services, or to any page comprising content provided by the Program then you may cease delivering results to that Landing Page and may exercise all other rights and remedies provided for in this Agreement.
6.5 You are solely responsible for ensuring that your activities or participation in the Program do not and will not include any Excluded URLs or Inappropriate URLs, and you shall take all diligent actions to ensure the same.
6.6 You shall review all URLs prior to directing Users who access such URLs to the Landing Page to make certain that such URLs are not Excluded URLs.
6.7 You shall not direct Excluded URLs to any page that is associated with the Program. If any Domain Names includes URLs that later fit the definition of "Excluded URLs", then, within one (1) business day you shall cease to associate such URL with the Program.
6.8 You shall promptly notify us of any claim made or threatened concerning the content of any URL associated by you with the Program.
6.9 You may only use the media and advertising that is provided by you or your licensor(s) on the Domain Name web pages and you may not change, alter, obscure, delete or add to any User query or any ad code, content or the manner of presentation of any links in any way.
6.10 You shall not engage in any activity, directly or indirectly, that alters any User query or that re-sells the Program to any third party, or re-distributes any content provided by the Program without the prior written consent of us or our licensors, or authorize any third party (other than an internet user) to use or distribute content from the Program without first contacting us or our licensors.
6.11 You shall not cache, modify, or reverse-engineer any content, including, without limitation, any software, web pages, links, or any other materials provided or made accessible by you or your licensors.
7. TERM AND TERMINATION
7.1 Your participation in the Program shall be for one year from the earlier of the date (a) you clicked "I Agree" or (b) you commenced using the Program,,and shall automatically renew without notice for successive terms of one year, except as otherwise agreed to in writing by us.
7.2 Your failure to comply with this Agreement shall constitute a material breach and without limiting our rights or remedies under this Agreement, at law or otherwise, shall result in the forfeiture of any unpaid earnings and we may terminate your account immediately on notice to you.
7.3 Without cost, charge or liability for termination, we reserve the right to terminate or suspend indefinitely (at our discretion) your participation in the Program our discretion at any time for any reason.
7.4 Upon termination, suspension or expiration, your participation in the Program, all of your rights to participate in the Program and your account shall cease, and all rights granted to you pursuant to this Agreement shall also cease.
8.1 If any covenant or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or incapable of being enforced by reason of any rule of law, arbitration or public policy, then such covenant or other provision will be severed from and will not affect any other covenant or other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal, or unenforceable covenant or provision had never been contained in this Agreement. All other covenants and provisions of this Agreement will, nevertheless, remain in full force and effect and no covenant or provision will be deemed dependent upon any other covenant or provision unless so expressed herein.
9. REPRESENTATIONS & WARRANTIES
9.1 You represent and warrant to us that you have the full capacity to agree to this Agreement and to be bound hereby, and that you have full power and authority to enter into this Agreement without violating or breaching (i) any of the contract terms hereof, (ii) any applicable laws or regulations, (iii) any contract, agreement or commitment to any third party, or (iv) any third party rights.
9.2 All of the following terms and conditions must be adhered to and are legally binding immediately upon your acceptance of this Agreement and/or participation in the Program. We represent and warrant that we have full power and authority to enter into this Agreement. You represent and warrant that (i) you have full power and authority to agree to this Agreement, (ii) you own or have the right to use all necessary rights, including all Intellectual Property Rights, to the domain names, and (iii) you will not place in the Program any domain names which would violate any provision of this Agreement.
WE, OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS ("PROGRAM PARTIES") ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN. NONE OF THE PROGRAM PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PROGRAM REMAINS WITH YOU. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PROGRAM PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE PROGRAM, (B) THE NUMBER OF PERSONS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PROGRAM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PROGRAM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROGRAM PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ANY PROGRAM PARTY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED FIVE DOLLARS ($5.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10. INTELLECTUAL PROPERTY
10.1 As between the contracting parties, we shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to the Program (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the Program.
10.2 For purposes of this Agreement, "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. You shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Program; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Program, or any other technology, software, materials and documentation related to the Program; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Program; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from the us, timesharing, service bureau or other unauthorized purposes any aspect of the Program or access thereto; (v) directly or indirectly access, launch and/or activate the Program through or from any software application or means other than your Site; or (vi) engage in any action or practice that reflects poorly on us or our vendors, or otherwise disparages or devalues the reputation or goodwill of the same.
11.1 You agree to safeguard and, except for the benefit of the Program, not to disclose to anyone any proprietary or confidential information acquired which you have access to the Program. Such information includes, without limitation, any revenue share information, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
12. RELEASE AND INDEMNIFICATION
12.1 In addition to the indemnifications elsewhere in these terms you shall indemnify, defend, and hold harmless us, our officers, directors, shareholders, members, agents, and employees from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred through your use of the Program ("Losses"), that are known or unknown, contingent or otherwise. You furthermore agree to indemnify us under the terms of this paragraph 12 arising from your breach of any term or provision of this Agreement.
13.1 You shall not place with the Program or in any way through the Program a domain name (i) to which it does not have valid ownership, as determined by us in our sole discretion or (ii) which infringes on the intellectual property rights of a third party. In the event that any such name is provided for use in the Program, and such lack of rights or infringement is brought to the attention of us, then we shall have the right to cancel the participation of any such names in the Program, and, in appropriate situations, in our sole discretion, we will terminate your participation in the Program and seek legal recourse against you and any others involved. You hereby agree to indemnify, defend and hold harmless the Program Parties from any claim that the domain name is owned by someone other than you or that the domain name infringes on the intellectual property rights of a third party.
This Agreement shall be governed by, and construed in accordance with, the laws of the state of Florida, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction.
We reserve the right to change any of these terms and conditions at any time without notice. You are responsible for complying with any changes to the terms and conditions within ten (10) days of the date of change. Your continued use of the Program following notice by us of any modifications to this Agreement shall constitute your agreement to continue to be bound by this Agreement as so modified.
Remedies and Penalties
Notwithstanding anything to the contrary in this Agreement, in addition to any and all other remedies to which we are entitled, we specifically reserve the right to:
1) Immediately suspend or deactivate any and all domain names or accounts that we believe in its sole and absolute discretion to be violating the terms of this Agreement;
2) Require the forfeiture of any previously earned revenue in connection with the Program, which has yet to be paid; and/or
Jurisdiction and Venue
Any litigation based hereon, or arising out of, under, or in connection with this Agreement, shall be brought and maintained exclusively in the courts of the state of Florida. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the courts of the state of Florida for the purpose of any such litigation as set forth above. The parties hereto further irrevocably consent to the service of process by personal service within or without the state of Florida. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
Waiver of Jury Trial
Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under this Agreement and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
No Third Party Beneficiaries
This Agreement is made solely for the benefit of the contracting parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.
Prohibition of Assignment
You may not assign any of your rights or delegate any of your duties under this Agreement without the prior written consent of us. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under this Agreement.
Successors and Assigns
Except as otherwise expressly provided in this Agreement, the foregoing terms and conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to this Agreement.
Independent ContractorYou are an independent contractor and in no way and under no circumstance should you look to us for compensation and benefits as an employee.
If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, government regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party's performance shall be excused.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by us in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.