IMPORTANT – READ CAREFULLY:
This Publisher Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) and Luminate, Inc. (“Luminate”) with its principal place of business at 100 View Street, Suite 201, Mountain View, CA 94041. WHEN YOU CHECK “YES, I AGREE,” YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND ANY MATERIALS LUMINATE INCORPORATES BY REFERENCE IN THIS DOCUMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED IN THESE TERMS AND CONDITIONS. THIS AGREEMENT GOVERNS YOUR USE OF THE LUMINATE SERVICE. In this Agreement, the terms “you,”“your,” or “publisher” refer to the entity you represent. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT CHECK “YES, I AGREE”.
1. Your Access to the Luminate Service. Your access to the Luminate Service is subject to the terms and conditions set forth in this Publisher Agreement. The “Luminate Service” shall mean Luminate’s provision to you of certain JavaScript and other technology, including Image Applications, that you may integrate into your websites (each a “Site”). Luminate shall pay you certain fees as described in Section 9 below.
1.A. Luminate Beta Service. Subject to Luminate’s prior approval, Luminate may provide to you certain “Beta” releases of the Luminate Service. To the fullest extent permitted by law, such Beta releases are provided to you by Luminate “AS IS” and you use them at your option and risk. For avoidance of doubt, the terms, conditions, and obligations specified herein for the Luminate Service shall apply to any Beta releases.
2. Responsibilities. You are solely responsible for the Site, including without limitation all content, materials, photographs, and images that appear on the Site, maintenance and operation thereof, proper implementation of Luminate’s specifications, adherence to the terms and conditions of this Agreement, Luminate’s Publisher Guidelines (set forth at http://www.luminate.com/publisher/guidelines/ and incorporated herein (the “Publisher Guidelines”)), and Luminate’s Trademark Use Policy (set forth at http://www.luminate.com/trademark-policy/ and incorporated herein (the “Trademark Policy”)). The Publisher Guidelines and Trademark Policy may change from time-to-time and will bear the date of the last modification at the top of the page. You expressly agree and undertake to regularly visit the Publisher Guidelines and Trademark Policy portions of the Luminate website, identified in this paragraph, to read the Publisher Guidelines and Trademark Policy carefully before undertaking this Agreement, and to re-read them carefully from time to time during the term of this Agreement. If you disagree with any changes to the Publisher Guidelines or Trademark Policy, you agree to immediately cease using the Luminate Service. Any violation of the Publisher Guidelines or Trademark Policy shall be enforced as set forth in those portions of this Agreement, specified at the links provided in this paragraph. Luminate reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, the Publisher Guidelines, or the Trademark Policy, or any engagement in any activity prohibited by this Agreement, the Publisher Guidelines, or the Trademark Policy. Luminate is not responsible for anything related to your Site, including without limitation, obtaining any necessary rights in or to any photographs, images, or other content on your Site. Luminate is not obligated to provide notice to you in the event that any tag is not properly displayed to End Users.
3. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, impressions, or clicks through any automated, deceptive, fraudulent, or other invalid means; (ii) edit or modify any tag, or remove, obscure, or minimize any tag in any way; or (iii) engage in any action or practice that reflects poorly on Luminate or otherwise disparages or devalues Luminate’s reputation or goodwill or that violates the Publisher Guidelines. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement, and in Luminate’s sole discretion, can result in forfeiture of any amounts that would have been due to you pursuant to Section 9 below, and that Luminate reserves the right to pursue any and all applicable legal and equitable remedies against you, including without limitation an immediate termination of this Agreement, and the pursuit of all available civil and criminal remedies.
4. Termination. Either party may terminate this Agreement at any time, with or without cause, upon written notice to the other provided as set forth in Section 15 below. Upon termination of this Agreement for any reason, your right to use the Luminate Service shall immediately cease and you shall remove the JavaScript and any other technology provided to you by Luminate from your Site. Sections 4 through 9, and 13 through 15 shall survive termination.
5. Confidentiality. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. “Luminate Confidential Information” includes without limitation: (a) all Luminate software, technology, programming, specifications, materials, guidelines, and documentation relating to Luminate’s products, services and/or business practices; and (b) any referral fee information, click-through rates, or other statistics and/or reports relating to Site performance or this Agreement. Confidential Information does not include information that has become publicly known through no breach by you or Luminate, or information that has been (i) independently developed without access to Luminate Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority, subject to the conditions herein.
Notwithstanding the foregoing, in the event you are using a Beta version of the Luminate Service, as described in Section 1.A, you shall not disclose any information related to such Beta version, including without limitation your thoughts and impressions of the Beta version, any description of the functionality of the Beta version, or that you have entered into this Agreement for the provision of such Beta version.
Each party acknowledges that (i) the disclosure of any Confidential Information, or any information which at law or equity ought to remain confidential, will immediately cause the Disclosing Party continuing irreparable injury that would not adequately be compensable in damages at law, and (ii) the Disclosing Party shall be entitled to immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies that may be available. As a result, each party hereby consents to the other party’s obtaining of such injunctive relief, including without limitation through a temporary restraining order or preliminary injunction. If the Receiving Party is compelled by law to disclose any Disclosing Party Confidential Information, the Receiving Party will provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and give the Disclosing Party reasonable assistance if it elects to contest the disclosure.
6. No Guarantee and Compliance with Laws. Luminate makes no guarantee, representation or warranty regarding if, or in what amounts, tags may from time to time be implemented on the Site or any portions thereof, Referral Fees will be generated pursuant to Section 9 below, or any payment will otherwise to be made to you under this Agreement. You are solely responsible for and will ensure that your use of the Luminate Service complies with all applicable laws. Luminate assumes no responsibility to determine whether your use of the Luminate Service on your Site or the images displayed therein violates any third party rights, applicable laws, or privacy rights.
7. No Warranty. YOU ACCEPT THE LUMINATE SERVICE “AS IS” AND UNDERSTAND THAT YOUR SOLE RECOURSE IN THE EVENT YOU ARE DISSATISFIED WITH THE LUMINATE SERVICE IS TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 4. LUMINATE MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO TAGS, REFFERAL FEES, AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ANY CLAIMS ARE BASED ON ANY CONTENT NOT OWNED BY LUMINATE, LUMINATE SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH SAME. YOU ACKNOWLEDGE AND AGREE THAT (A) THE LUMINATE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; AND (B) YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS.
8. Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, RELIANCE, 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) LUMINATE’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY LUMINATE TO YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. 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, acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
9. Payment. You shall receive a payment equal to fifty percent (50%) of Referral Fees. “Referral Fees” means the amount of cash fees actually received by Luminate based on Luminate’s agreement with the applicable merchant, and after deducting fees paid to any relevant independent contractors who contributed to enabling the transaction, in each case as determined by Luminate but in no event shall such deduction be greater than ten percent (10%) of the Referral Fees prior to the deduction. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to you shall be sent by Luminate by the end of the following calendar month, if your earned balance is $10 or more. In the event the Agreement is terminated, Luminate shall pay your earned balance to you within ninety (90) days after the end of the calendar month in which the Agreement is terminated. In no event, however, shall Luminate make payments for any earned balance less than ten US dollars ($10). Notwithstanding the foregoing, Luminate shall not be liable for any payment based on any breach of this Agreement by you. Luminate reserves the right to withhold payment or charge back your account due to any of the foregoing or any breach of this Agreement by you, pending Luminate’s reasonable investigation of any of the foregoing or any breach of this Agreement by you, or in the event that a merchant defaults on payment to Luminate. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. Activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the program contemplated by this Agreement. Luminate may change its pricing, revenue sharing, or payment structure at any time. If you dispute any payment made under this Agreement, you must notify Luminate in writing within thirty (30) days of any such payment; failure to so notify Luminate shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Luminate.
10. Publicity. You agree that Luminate may use your name, logo, and other trademarks in presentations, marketing materials, customer lists, financial reports, and website listings of customers for the purpose of identifying you as a Luminate publisher.
11. Representations and Warranties. You represent and warrant that (a) all of the information you provide to Luminate in connection with this Agreement is correct and current; (b) you are the owner of each Site or that you are legally authorized to act on behalf of the owner of such Site for the purposes of this Agreement; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder, including all necessary rights and authority for the use of all materials displayed on your Site, including without limitation the images displayed therein, as contemplated under this Agreement; and (d) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each Site and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach 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, or otherwise in violation of the Publisher Guidelines.
12. Your Obligation to Indemnify. You agree to indemnify, defend and hold Luminate, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g., relevant advertisers, licensors, licensees, consultants, and contractors) (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including without limitation damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person, arising out of, related to or which may arise from your use of the Luminate Service or your breach of any term of this Agreement.
13. Intellectual Property Rights. You expressly represent and Luminate acknowledges your representation that you own all right, title, and interest, including without limitation all Intellectual Property Rights (as defined below), in or to your Site, all content included in your Site, materials, photographs, and images that appear on the Site, and that Luminate shall not acquire any right, title, or interest in or to your Site or any content on your Site except as expressly set forth in this Agreement. You acknowledge that Luminate owns all right, title, and interest, including without limitation all Intellectual Property Rights, in and to the Luminate Service and any data obtained through the Luminate Service, and that you will not acquire any right, title, or interest in or to the Luminate Service or such data except as expressly set forth in this Agreement. You will not reproduce, duplicate, copy, sell, resell, exploit for any commercial purposes other than those specifically set forth herein, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Luminate Service or any documentation provided by Luminate, or create or attempt to create a substitute or similar service or product through use of or access to the Luminate Service or proprietary information related thereto. You will not remove, obscure, or alter Luminate’s copyright notice, trademark notice, patent notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the Luminate Service or documentation. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright 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.
14. Arbitration. You and Luminate hereby agree that any dispute, claim or controversy arising out of or relating in any way to the Luminate Service, including without limitation our Image Applications and this Agreement, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Luminate are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your status as a Luminate publisher.
If you elect to seek arbitration, you must first send to Luminate, as set forth in Section 15 below, a written Notice of your claim (“Notice”). The Notice to Luminate should be addressed to the CEO at the address set forth above. If Luminate elects to seek arbitration, it will send, as set forth in Section 15 below, a written Notice to your address on record in Luminate’s account information. A Notice, whether sent by you or by Luminate, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Luminate and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Luminate may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by you or Luminate shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Luminate receives your Notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or can be provided to you by Luminate if requested by written notice in the manner set forth below in Section 15. The arbitrator is bound by the terms of this Agreement, including but not limited to the limitation of liability provisions set forth above in Section 8. Otherwise, all issues are for the arbitrator to decide, including without limitation issues relating to the scope and enforceability of this arbitration provision. Unless you and Luminate specifically agree otherwise in a separate written agreement later explicitly amending this Agreement, any arbitration hearings will take place in Santa Clara County, California. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues an award that is greater than the last written settlement offer made before an arbitrator was selected (or if no settlement offer was made before an arbitrator was selected), then the non-prevailing party will pay the amount of the award or $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.
YOU AND LUMINATE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Luminate agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision, set forth in this Section 14, shall be null and void, and shall be considered severed from the Agreement in such a manner that the Agreement otherwise continues to be in full force and effect. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
15. Miscellaneous. This Agreement shall be governed by the laws of California, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Santa Clara County, California as set forth above in Section 14. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or by your continued participation in the Luminate Service after such terms have been updated by Luminate. If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired. 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. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Luminate. Notwithstanding the foregoing, Luminate may assign this Agreement to any affiliate or successor in interest at any time and without notice. The relationship between Luminate and you is not one of a legal partnership, agency, or employment, but is one of independent contractors. Any notices hereunder shall be valid if sent via email, upon confirmation of delivery of email; via certified mail, upon confirmation of delivery; or via reputable overnight courier service, upon confirmation of delivery, to your address on record in Luminate’s account information or if notice to Luminate at its principal office indicated above for the attention of the CEO, or to such other address or individual as the parties may specify from time to time by written notice to the other party with delivery confirmed as provided above.