This Purchase Order (the "Agreement") is made and entered into by and between Bidderplace GmbH ("BidderPlace" or "we"), and you, ("you" or "User") the party submitting an application to become an BidderPlace user. The terms and conditions contained in this Agreement apply to your participation with www.bidderplace.com ("User Program"). Each User Program campaign (a "Campaign") may be for any offering by BidderPlace or a third party (each such third party a "Client") and may link to a specific web site for that particular Campaign ("Program Web Site"). Furthermore, each Campaign may have additional terms and conditions on pages within the User Program and are incorporated as part of this Agreement. By submitting an application or participating in a Campaign, you expressly consent to all the terms and conditions of this Agreement.
You must submit a User Program application from our website. You must accurately complete the application to become a User (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the User Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason. By submitting an application to User Program, you agree to receive BidderPlace daily newsletters, press releases and updates via emails.
Subject to our acceptance of you as a User and your continued compliance with the terms and conditions of this Agreement, BidderPlace agrees as follows:
We will make available to you via the User Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the "Links") which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our User Program and will establish a link from your Media to the Program Web Site. We will pay User for each Qualified Action (the "Commission"). A "Qualified Action" means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by BidderPlace and (v) is not later determined by BidderPlace to be fraudulent, incomplete, unqualified or a duplicate. We will pay you any Commissions earned monthly, provided that your account is currently greater than $250. Accounts with a balance of less than $250 will roll over to the next month, and will continue to roll over monthly until $250 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. Payment for Commissions is dependent upon Clients providing such funds to BidderPlace, and therefore, you agree that BidderPlace shall only be liable to you for Commissions to the extent that BidderPlace has received such funds from the Clients. You hereby release BidderPlace from any claim for Commissions if BidderPlace has not received such funds from the Clients. BidderPlace’s technology and systems are the official counter for determining delivery of leads and Commissions. No other measurements or statistics of any kind shall be accepted by BidderPlace or have any effect under these Terms and Conditions. User understands that BidderPlace pays monthly. You understands that you need to raise an invoice and send it to BidderPlace, and that the payment amount is calculated by BidderPlace’s systems. Furthermore you agree that you will not raise any invoices against BidderPlace based on your own statistics. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by BidderPlace in its sole discretion. In the event that User disputes in good faith any portion of an invoice, User must submit that dispute to BidderPlace in writing and in sufficient detail within thirty (30) days of the date on the invoice. If User does not dispute the invoice as set forth herein, then User agrees that it irrevocably waives any claims based upon that invoice. In the event that User is also tracking Qualified Actions and User claims a discrepancy, User must provide BidderPlace with User's reports within three (3) days after 30th day of the calendar month, and if BidderPlace's and User's reported statistics vary by more than 10% and BidderPlace reasonably determines that User has used generally accepted industry methods to track Qualified Actions, then BidderPlace and User agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then BidderPlace's numbers shall govern. If User has an outstanding balance due to BidderPlace under this Agreement or any other agreement between the User and BidderPlace, whether or not related to the User Program, User agrees that BidderPlace may offset any such amounts due to BidderPlace from amounts payable to User under this Agreement. User also agrees to:
Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by BidderPlace in writing. Any pop-ups/unders used for the User Program shall be clearly identified as User served in the title bar of the window and any client-side ad serving software used by User shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
User Network Campaigns. For all Users that maintain their own publisher networks, User agrees to place the Links in its publisher network (the "Network") for access and use by those users in User's Network (each a "Third Party Publisher"). User agrees that it will expressly forbid any Third Party Publisher to modify the Links in any way. User agrees to maintain its Network according to the highest industry standards. User shall not permit any party to be a Third Party Publisher whose web site or business model involves content containing Objectionable Content. All Third Party Publishers must be in good standing with User. User must require and confirm that all Third Party Publishers affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. User shall promptly terminate any Third Party Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Publisher with respect to the Links, User shall promptly disclose to BidderPlace the identity and contact information for such Third Party Publisher. User shall promptly remove any Third Party Publisher from the User Program and terminate their access to future Campaigns of BidderPlace in the Network upon written notice from BidderPlace. Unless BidderPlace has been provided with all truthful and complete contact information for a Third Party Publisher and such Third Party Publisher has affirmatively accepted this Agreement as recorded by BidderPlace, User shall remain liable for all acts or omissions of any Third Party Publisher.
Except as otherwise provided in this Agreement or with the consent of BidderPlace, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Users provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the User Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. User shall not use any information obtained from the User Program to develop, enhance or operate a service that competes with the User Program, or assist another party to do the same.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the User Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any BidderPlace graphics, creative, copy or other materials owned by, or licensed to, BidderPlace in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the User Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of BidderPlace's trademarks, service marks, copyrights, patents or trade secrets. You agree that BidderPlace may use any suggestion, comment or recommendation you choose to provide to BidderPlace without compensation. All rights not expressly granted in this Agreement are reserved by BidderPlace.
This Agreement shall commence on the date of our approval of your User Program application or on the date of signature of a copy of this Agreement by both BidderPlace and you, whichever comes first, and shall continue thereafter until terminated as provided herein. You may terminate your participation in the User Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Campaigns or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Campaigns or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all BidderPlace or Client intellectual property, and will cease representing yourself as a BidderPlace or Client publisher for such one or more Campaigns. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement BidderPlace reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) BidderPlace determines that you have violated this Agreement, (ii) BidderPlace receives any complaints about your participation in the User Program which BidderPlace reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the User Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, BidderPlace reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the User Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the User Program that you submit the final version of your email to BidderPlace for approval by sending it to your BidderPlace representative and upon receiving written approval from BidderPlace of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon BidderPlace's approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon BidderPlace's approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Users or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the User Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. BidderPlace shall make all determinations about fraudulent activity in its sole discretion.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, BidderPlace represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to BidderPlace's own business operations or BidderPlace's proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this User Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, BidderPlace may change, suspend or discontinue any aspect of an Campaign or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. User agrees to promptly implement any request from BidderPlace to remove, alter or modify any Link, graphic or banner ad that is being used by User as part of the User Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the User Program and each Campaign and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the User Program.
User hereby agrees to indemnify, defend and hold harmless BidderPlace and Clients and their respective subsidiaries, publishers, Users, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by User herein, (ii) any misuse by User, or by a party under the reasonable control of User or obtaining access through User Program, of the Links, Campaigns or BidderPlace or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). BidderPlace hereby agrees to indemnify, defend and hold harmless User and its subsidiaries, publishers, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that BidderPlace is not authorized to provide you with the Links.
THE USER PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO USER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, BIDDERPLACE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BIDDERPLACE DOES NOT WARRANT THAT THE USER PROGRAM OR LINKS WILL MEET USER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE USER PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. BIDDERPLACE EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. BIDDERPLACE DOES NOT GUARANTEE THAT USER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL BIDDERPLACE BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF BIDDERPLACE. IN NO EVENT WILL BIDDERPLACE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT BIDDERPLACE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. BIDDERPLACE'S CUMULATIVE LIABILITY TO USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF 1000 US DOLLARS (USD) OR THE AGGREGATE OF THE AMOUNTS PAID TO USER BY BIDDERPLACE IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
User shall be responsible for the payment of all attorney fees and expenses incurred by BidderPlace to enforce the terms of this Agreement. This Agreement contains the entire agreement between BidderPlace and User with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. User agrees that BidderPlace shall not be subject to or bound by any User insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether BidderPlace "clicks through" or otherwise indicates its acceptance thereof. User may not assign all or any part of this Agreement without BidderPlace’s prior written consent. BidderPlace may assign this Agreement at any time with notice to User. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting an application to User Program, User affirms and acknowledges that User has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If User does not wish to be bound by this Agreement, User should not submit an application to User Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.