Qumana Software Inc/Q-Ads Terms of Service

ALL CLIENTS (HEREINAFTER "Client") ENROLLED IN THE PAID LISTINGS PROGRAM MUST COMPLY COMPLETELY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. QUMANA SOFTWARE, INC., A VANCOUVER-BASED CORPORATION WITH PRINCIPAL PLACE OF BUSINESS AT 330-1639 WEST SECOND AVE., VANCOUVER, BC OPERATING THE BETA ADVERTISING SERVICE QADS.QUMANA.COM, (HEREINAFTER "Q-Ads"), RESERVES THE RIGHT TO TERMINATE THE AGREEMENT AND/OR WITHHOLD PAYMENT FROM ANY HOST THAT VIOLATES ANY OF OUR TERMS AND CONDITIONS.

The parties hereto, in consideration of the mutual obligations set forth hereinafter and intending to be legally bound, hereby agree as follows:

Purpose. Q-Ads and Client hereby agree to enter into an agreement whereby Client will be enrolled in Q-Ads's Paid Listing Distribution Program whereby Client shall provide Q-Ads with certain keywords. Q-Ads will return relevant paid search results to those requests for display on the Client's designated Site. The parties shall share revenue generated from the Paid Listings as set forth in this Agreement.
Program Participation. Participation in the Program is subject to Client's continued compliance with the Program Policies and Details which are set forth on Exhibit A attached hereto and made a part hereof, or such other URL as Q-Ads may provide to Client from time to time. Client agrees that Q-Ads may supply Paid Listings via a third party distributor and/or Q-Ads provided advertisements to the Client designated ("Site") as set forth on Exhibit A.
Delivery of Services for Paid Listing Distribution. Client will send keywords initiated by a User to Q-Ads each time a User requests a page view ("User Query'). After receiving a User Query from Client, Q-Ads will deliver to Client Paid Listings. After receiving Paid Listings from Q-Ads in response to a User Query, Client will display all Paid Listings on the Site.
Paid Listing Placement. Client agrees to comply with the specifications provided by Q-Ads and the Placement Requirements set forth below to ensure proper display of the Paid Listing on the Site.
- Client will display a minimum of one (1) Paid Listings on the Site
- Client shall not display bid prices or any variation thereof for any Q-Ads Paid Listing.
Logo and Trademark Placement. With respect to any Paid Listing, the provider's logo, service mark or name will appear in the same format as other search engine's logos, service marks or names appear in such listing. For example, if other search engines are listed by logo and the logo provides the User with the ability to click through to the search engine Web site, the Paid Listing will also be identified by logo with associated click-through ability. Client also agrees to place the Q-Ads service mark or the Q-Ads logo, or any subsequent trademark or service mark designated by Q-Ads, within any Paid Listing obtained by Q-Ads and displayed on the Site in the same format used by Client for attributing other search results to other search engines.
Prohibited Uses. Client shall not, and shall not authorize or encourage any third party to: (i) generate fraudulent impressions of or fraudulent clicks on any Paid Listing, including but not limited to repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software; (ii) edit, modify, filter or change the order of the information contained in any Paid Listing or Paid Listing Unit, or remove, obscure or minimize any Paid Listing or Paid Listing Unit in any way; (iii) frame any Web page accessed by an end user after clicking on any part of a Paid Listing link ("Advertiser Page"); (iv) redirect an end user away from the Advertiser Page, provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page or intersperse any content between the Paid Listing and the Advertiser Page; (v) display any Paid Listing on any error page, registration or "thank you" page (e.g. a page that thanks a user after he/she has registered with the applicable Web site), or in any email or on any Web page or any Web site that contains any pornographic, hate-related or violent content ; or (vi) act in any way that violates any Program Policies posted on the Q-Ads Web Site, as may be revised from time to time. Violation of any of the foregoing may result in immediate termination of this Agreement.
Client's Obligations. Upon execution of this Agreement Client agrees to:
1. Not intentionally post misleading information with regard to the Paid Listings or directly or indirectly encourage or require users to access the Paid Listings or to otherwise generate click-throughs through any means which could be interpreted as coercive, misleading, malicious or otherwise fraudulent.
2. Display the Paid Listings in the manner and format received from Q-Ads and not to alter the Paid Listings in any way.
3. Not collect trends or data or information from the Paid Listings without prior consent for Q-Ads.
4. Not utilize any means which would inhibit the User's internet browser from passing the referring URL to Q-Ads's Paid Listing's service.
5. Take sole responsibility for the Site, including all content and materials, maintenance and operation thereof, the proper implementation of Q-Ads's technical specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Q-Ads is not responsible for anything related to the Site and shall not be obligated to provide notice to Client in the event that Paid Listings are not being displayed properly to end users of the Site.
6. To direct to Q-Ads, and not to any advertiser, any communication regarding any Paid Listing displayed in connection with the Site.
Revenue Share Payments. Q-Ads will make monthly revenue share payments ("Revenue Share Payments") to Client based on a percentage of the "Click Through Revenue" collected by Q-Ads. The "Click Through Revenue" shall be determined solely by Q-Ads based on the number of Valid Click Throughs resulting from the queries originating from the Client in the applicable calendar month. Revenue Share Payments are due and payable to Client thirty (30) days after Q-Ads receives payment from its Paid Listings providers or ad distribution partners or ad distributor. Q-Ads will not be responsible for any payments to Client until payment has been collected from Q-Ads's paid listings providers or ad distribution partner or ad distributor. The monthly Revenue Share Payments shall be calculated as follows:

Revenue Share Payment to Client = 50 % of Click Through Revenue per the terms of this agreement.

Notwithstanding the foregoing, Q-Ads shall not be liable for any payment based on (a) any fraudulent impressions generated by any person, bot, automated program or similar device or for fraudulent clicks similarly generated on any Paid Listing, as reasonably determined by Q-Ads and or its Partners; (b) Paid Listings delivered to end users whose browsers have JavaScript disabled; (c) Paid Listings benefiting charitable organizations and other placeholder or transparent Paid Listings that Q-Ads may deliver in the event that a Site is improperly configured to comply with Q-Ads technical requirements; (d) Q-Ads or its Partner advertisements for its own products and/or services; or (e) impressions co-mingled with a significant number of fraudulent impressions or fraudulent clicks described in (a) above, or as a result of other breach of this Agreement by Client for any applicable pay period. Q-Ads reserves the right to withhold payment of any Revenue Share Payment in the event of any breach of this Agreement by Client, pending Q-Ads's reasonable investigation of any of the foregoing or any breach of this Agreement by Client, or in the event that an advertiser whose Paid Listing are displayed on the Site defaults on payment for such Paid Listing to Q-Ads.
Termination. Client may terminate this Agreement, or cancel the participation of additional Site participating in the Program pursuant to Section 2, with or without cause at any time. Q-Ads may at any time, in its sole discretion terminate this Agreement, or suspend or terminate the participation of any Site under this Agreement for any reason whatsoever. In addition, Q-Ads reserves the right to terminate this Agreement or cancel participation in the Program of any Site without notice where such Site has not generated any clicks on Paid Listings (as measured by Q-Ads) for a period of two (2) months. Upon termination of this Agreement for any reason, sections 7, 10, 12, 13, 15, 17, 18 and 19 shall survive. Upon termination of this Agreement, Client agrees to assist in the removal from the Site upon termination of this Agreement any portion of the Paid Listings, Q-Ads's or its Paid Listings Providers' Logo, Q-Ads's or its Paid Listings Provider Licensed Marks or any other Q-Ads or its Paid Listings Providers' Intellectual Property from Client's Site. Where, pursuant to Section 2, Client has multiple Sites participating in the Program, the foregoing shall apply to cancellation or termination of any such Site in the Program without effecting this Agreement in relation to the remaining Sites when set forth in writing and signed by both parties.
Confidentiality. Client agrees not to disclose Q-Ads's Confidential Information without Q-Ads's prior written consent. "Q-Ads Confidential Information" includes without limitation: (a) all Q-Ads software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Program; (b) click-through rates or other statistics relating to Site performance in the Program provided to by Q-Ads; and (c) any other information designated in writing by Q-Ads as "Confidential" or an equivalent designation. It does not include information that has become publicly known through no breach by Client or Q-Ads, or information that has been (i) independently developed without access to Q-Ads Confidential Information as evidenced in writing; (ii) rightfully received by Client from a third party; or (iii) required to be disclosed by law or by a governmental authority.
Changes and Updates
Q-Ads reserves the right to make strategic and business decisions about the Beta Advertising Service Q-Ads.com (and all related and successor programs). We therefore reserve the freedom, based on our discretion, to change all or part of these Terms of Use and/or the Policies and to change or discontinue the Beta Service, including but not limited to raising or lowering the rate of compensation, for any or all ad units, changing the basis of compensation and/or changing the payment schedule or terms. We may make these changes at any time, with or without notice, which will become effective upon posting to http://adgenta.com/advertising/terms/default.shtml. Your continued use of the Q-Ads.com Beta Service constitutes your acceptance of these terms and conditions and assume the responsibility to review these terms for updates.
No Guarantee. Q-Ads makes no guarantee regarding the level of impressions of or clicks on any Ad, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to Client under this Agreement.
No Warranty. Q-ADS 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.
Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR CLIENT'S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS, (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) ADGENTA'S AGGREGATE LIABILITY TO CLIENT UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY Q-ADS TO CLIENT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. . Neither party will be entitled to make any claim nor commence any proceedings arising out of any transactions pursuant to this Agreement unless the same is brought within one (1) year from the date the cause of action arose. 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.
Representations and Warranties. Client represents and warrants that (a) all of the information provided to Q-Ads in connection with this Agreement is correct and current; and (b) Client is not a Canadian Goods and Services Tax ("GST") registrant (unless they notify Q-Ads other wise) and will notify Q-Ads if that changes; (c) Client has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Client hereunder. Client further represents and warrants that each Site and any and all material displayed therein: (i) complies with all applicable laws, statutes, ordinances and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related or otherwise violent in content.
Indemnification. Client agrees to indemnify, defend and hold Q-Ads, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), arising out of, related to this Agreement or which may arise from Client's enrollment in the Program, use of the Site, and/or its breach of any term of this Agreement.
Information Rights. Q-Ads may retain and use for its own purposes all information Client provides, including but not limited to Site demographics and contact and billing information. Client agrees that Q-Ads may transfer and disclose to third parties personally identifiable information about Client for the purpose of approving and enabling Client's participation in the Program, including to third parties that reside in jurisdictions with less restrictive data laws. Q-Ads disclaims all responsibility, and will not be liable to for any disclosure of that information by any such third party. Q-Ads may share aggregate (i.e., not personally identifiable) information about Client with advertisers, business partners, sponsors, and other third parties. In addition, Client grants Q-Ads the right to access, index and cache the Site(s), or any portion thereof, including by automated means including Web spiders or crawlers.
No Rights Granted. CLIENT acknowledges that any and all of the trademarks, trade names, copyrights, patents, and other intellectual property rights utilized by Q-Ads in connection with the performance of this Agreement will be and remain the sole property of Q-Ads. Client acknowledges that no rights or licenses are granted with respect to any of the foregoing under this Agreement.
Entire Agreement. This Agreement and any Exhibits identified herein constitute the whole agreement between the parties with respect to the subject matter hereof. CLIENT hereby acknowledges that it has not relied on any prior or contemporaneous representations, written or oral, not set forth in this Agreement with respect to any matter related to the interpretation or performance of this Agreement.
Miscellaneous. This Agreement shall be governed by the laws of the Province of British Columbia, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Vancouver, British Columbia. Any modifications to this Agreement must be made in a writing executed by both parties except that Q-Ads may update the Program Policies by providing Client with such URL modifying the policies from time to time. 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. Client may not resell, assign, or transfer any of its rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Q-Ads. Notwithstanding the foregoing, Q-Ads may assign this Agreement to any affiliate at any time without notice. The relationship between Q-Ads and Client is not one of a legal partnership relationship, but is one of independent contractors and that neither party has the authority to bind the by contract or otherwise.

EXHIBIT A: PROGRAM POLICIES

All publishers who apply for the Paid Listings Distribution program are reviewed according to these program policies. We reserve the right to monitor sites after they begin running the Paid Listings under this program. If a site is found to be in violation of our policies at any time, we will warn the publisher or suspend or terminate the account.

Account Transferability: Q-Ads's Paid Listings Distribution accounts are not transferable, assignable or resalable in connection with the sale of your site or otherwise. For example, when a site changes ownership or management, the prior owner or manager must cancel the Paid Listings Distribution account for the site, and the new owner or manager may apply for a new Paid Listings Distribution account in his or her name.

Code Modification:

Ad Placement:

Paid Listings must not be displayed on pop-ups, pop-unders, error, registration, or "thank you" pages.
Paid Listings may not be placed on pages published specifically for the purpose of showing ads, whether or not the page content is relevant.
Elements on a page must not obscure any portion of the Paid Listings, and the Paid Listings colors must be such that the ad text and URL are visible.

Copyrighted Material: In order to avoid associations with copyright claims, website publishers may not show Paid Listings in areas such as MP3, Video, News Groups, and Image Results. However, ads can be displayed on pages with links to these items.

These icons are reproducible under the terms of a LGPL (Lesser Gnu Public License), http://www.gnu.org/copyleft/lesser.html. This library is free software; you can redistribute it and/or modify it under the terms of the GNU Lesser General Public License as published by the Free Software Foundation; either version 2.1 of the License, or (at your option) any later version.

This library is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU Lesser General Public License for more details.

You should have received a copy of the GNU Lesser General Public License along with this library; if not, write to the Free Software Foundation, Inc., 51 Franklin St, Fifth Floor, Boston, MA 02110-1301 USA

Qumana Software Inc. hereby disclaims all copyright interest in the library by David Vignoni (a library of icons) at http://www.icon-king.com.

Dialers: Your site must not require or prompt an end user to download a dialer in order to view content of the site. Incentives Web pages may not include incentives of any kind for users to click on ads. This includes encouraging users to click on the Paid Listings or to visit the advertisers' sites as well as labelling the Paid Listings with text other than "sponsored links" or "advertisements."

Language: The Paid Listings code may be placed on pages with content primarily in English. Paid Listings must not be displayed on any page with content primarily in an unsupported language.

Prohibited/Fraudulent Clicks: Any method that artificially and/or fraudulently generates clicks is strictly prohibited. These prohibited methods include but are not limited to: repeated manual clicks, using robots, automated clicking tools, or other deceptive software. Please note that clicking on your own Paid Listings for any reason is prohibited, to avoid potential inflation of advertiser costs.

Site Content: Site may not include:

Excessive profanity
Hate, violence, racial intolerance, or advocate against any individual, group, or organization
Hacking/cracking content
Illicit drugs and drug paraphernalia
Pornography, adult, or mature content
Excessive advertising
Pop-ups, pop-unders or exit windows that interfere with site navigation, obscure Paid Listings, change user preferences, or are for downloads. Other types of pop-ups, pop-unders, or exit windows may be allowed, provided that they do not exceed a combined total of 5 per user session
Deceptive or manipulative content or construction to improve your site's search engine ranking.

Q-Ads may provide updates to the Program Policies time to time and Client must also adhere to all revised terms.