This Sponsored Ads Agreement ("Agreement") contains the terms and conditions that govern your access to and use of Herbpon's Sponsored Ads (the "Services"). "We," "us," "our," and "Herbpon" means Herbpon and any of its applicable Affiliates. "You" and "your" means the applicant (if registering for or using the Services as an individual) or the business employing the applicant (if registering for or using the Services as a business). Other terms have the meanings assigned in this Agreement, including as listed in the Definitions Section at the end of this Agreement.By registering for or using the services, you (on behalf of yourself or the business or other legal entity you represent): (a) agree to be bound by this agreement, including the program policies (defined below); (b) acknowledge and agree that you have independently evaluated the desirability of using the services and are not relying on any representation, guarantee, or statement other than as expressly set forth in this agreement; and (c) hereby represent and warrant that you are lawfully able to enter into contracts (e.g., you are not a minor). in addition, the person agreeing to this agreement on behalf of a business or other legal entity hereby represents and warrants that he or she is authorized and lawfully able to bind that business or entity to this agreement. If you are an agent (defined below), section 21 will apply.
1. Registration. To use the Services, you must complete the registration process designated by us for the Services. As a part of the registration process, you must provide us with all information we may require, including Your Brand, your (or your business’s) legal name, address, phone number, and email address. You must disclose to Herbpon information on all advertising that you currently have with other companies and you must advertise your products or services with Herbpon at the same price or a lower price than you are currently advertising with other companies. If you decide to advertise your products with another company at a later date for a lower price and then you must lower your pricing with Herbpon. The information you provide during the registration process and your relationship to Your Brand is subject to verification by us, and we may reject your registration in our sole discretion. If you fail to follow the guidelines regarding advertising with other companies Herbpon can terminate the services offered to you immediately. 2. Services. The Services include a variety of self-service and fully managed tools and services that enable you to advertise and promote Your Brand and Your Products from time to time. Without limiting your responsibility for your Materials and use of the Services, we reserve the right to determine and control all aspects (including all functionality) of the Services and any Herbpon Network Property, as well as the right to re-design, modify, discontinue offering or restrict access to any or all aspects of any of them at any time at our sole discretion without notice. Additionally, we may at any time remove you from the Services or suspend, reject or remove any of Your Materials, Your Brand Page or Your Ads without notice. Although any or all aspects of the Services may be offered without charge, we reserve the right to charge for any or all aspects of the Services at any time. You acknowledge that we and any of our Affiliates may participate in the Services (e.g., in an ad auction) to market any of our or our Affiliates’ products and services. 3. Your Brand Page and Your Ads. Your Brand Page and Your Ads may be displayed on any Herbpon Network Property as we determine. We do not guarantee that Your Brand Page or Your Ads will be displayed on or made available through any Herbpon Network Property, nor do we guarantee Your Brand Page or Your Ads will appear in any particular position or rank. As between you and us, you are solely responsible for all obligations, risks, liabilities and other aspects related to Your Materials and your use of the Services. You may request that we cancel an individual campaign for Your Ads, and we will do so reasonably promptly after receiving your request. Any fees previously paid in connection with the canceled campaign (including any upfront flat fee) will not be refunded, and any fees accrued in connection with the canceled campaign as of the date of cancellation will be payable as described below. 4. Services Requirements. You will at all times comply with this Agreement and the terms, conditions, policies, guidelines, rules and other information on the Sponsored Ads Site (collectively, "Program Policies") as we may update from time to time. You will provide us with any information that we request to verify your compliance with this Agreement or any Program Policies. Your Materials will be provided or made available to us in connection with the Services in the format and using the interface, feeds, APIs or other mechanisms we require and in accordance with applicable Program Policies. Your Materials will be complete, accurate and up-to-date, and you will promptly update Your Materials as necessary to ensure they at all times remain complete, accurate and up-to-date. It is your responsibility to keep backups of Your Materials, and we are not responsible for the loss of Your Materials or any information for any reason. In addition, you hereby consent to us:
sending you emails relating to the Services from time to time;
monitoring, recording, using, and disclosing information contained in or about Your Materials, Your Brand Page and Your Ads that we obtain in connection with your use of the Services;
using mechanisms that rate, or allow users to rate, Your Materials, Your Brand, Your Brand Page, Your Ads, and we may make these ratings and feedback publicly available; and
using automated software and other methods to cache, crawl, spider, analyze and examine websites and other properties related to the Services to improve our service quality.
You will ensure that Your Materials do not relate to, contain, or otherwise seek to advertise or promote any products or services that are prohibited by our Program Policies. You will not, directly or indirectly, engage in any fraudulent, impermissible, inappropriate or unlawful activities in connection with your participation in or use of the Services, including: (a) generating fraudulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; (b) other than through reporting offered by us under the Services, collecting any user information from any Herbpon Network Property or retrieving, extracting, indexing or caching any portion of any Herbpon website or services or the websites or services of our Affiliates, whether through the use of automated applications or otherwise; (c) submitting any of Your Materials that are inappropriate, obscene, defamatory or unlawful, or that infringe or misappropriate the proprietary rights, including Intellectual Property Rights, of any third party; (d) submitting any of Your Materials for Your Ads that are directed at children under 13 years of age, as defined by COPPA; (e) engaging in any acts or practices that are unfair or deceptive in connection with Your Brand Page or Your Ads, including submitting any of Your Materials that are unfair, deceptive, misleading, or that contain false or inaccurate information or unsubstantiated claims; (f) targeting communications of any kind on the basis of the intended recipient being a user of any Herbpon Network Property; (g) interfering with the proper working of any Herbpon Network Property, the Services or our systems; (h) transmitting any viruses, "Trojan horses" or other harmful code; or (i) attempting to bypass any mechanism we use to detect or prevent such activities. 5. Payment. To use certain features of the Services, we may require that you provide us with valid credit card information from a credit card acceptable by us ("Your Credit Card"). In connection with providing this information, you will use only a name you are authorized to use in connection with the Services and will update this information as necessary to ensure that it at all times remains accurate and complete. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from your credit card issuer, and at our option to charge Your Credit Card for any sums payable by you to us (in reimbursement or otherwise). You agree to pay us the applicable fees we calculate for your use of the Services or any part of them. Herbpon automatically receives 25% of everything sold on Herbpon. At our option, we may require that you pay fees accrued in connection with the Services on a periodic basis (e.g., weekly or monthly) or following the achievement of performance thresholds established by us for you or your use of the Services. You agree to pay us the applicable fees for your use of the Services in United States dollars only. All click and impression count in connection with Your Ads will be measured solely by us, and our measurements will be used as the sole basis for determining delivery of Your Ads and amounts due. For any amounts you owe us, we may (a) charge Your Credit Card, (b) offset any amounts that are payable by you to us against any payments we or our applicable Affiliate(s) may make to you or your Affiliate(s) (e.g., deduct from payment), (c) invoice you for amounts due to us under this Agreement, in which case you will pay the invoiced amounts within 30 days of the date of the applicable invoice, or (d) seek such payment or reimbursement from you by any other lawful means. You will reimburse us for all fees incurred in connection with our collection of amounts payable and past due. You waive all claims related to the fees we charge unless made within 60 days after the date charged. You understand third parties may generate impressions or clicks on Your Ads for improper purposes, and you accept this risk. 6. License. You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, excerpt, analyze, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks on the Herbpon Site (provided you are unable to do so using standard functionality made available to you via the Sponsored Ads Site or Services); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party). 7. Your Account; API Partner. You are solely responsible for maintaining accurate, current and complete account information, for maintaining the secrecy of any account credentials and passwords used in connection with the Services, and for all activities that occur under your account. You or an account administrator for your account may authorize additional individuals (including Herbpon) to access your account and use the Services, and you are solely responsible for all activities that occur under your account by such additional individuals (including all incurred fees and charges). If any of your passwords are compromised, you must change the compromised password(s). Subject to our consent (which we may grant or withdraw at any time in our sole discretion) and through the means as determined solely by us, you may authorize another entity ("API Partner") to access or use the Services on your behalf through an application program interface or other means as we may designate from time to time. You will require your API Partner to be bound by all restrictions applicable to you under this Agreement (including without limitation your confidentiality and non-use obligations) on terms at least as restrictive as those on you under this Agreement. As between you and us, you will be fully responsible for the acts, omissions, and obligations of your API Partner as if such acts, omissions, and obligations were your acts, omissions, and obligations. 8. Confidentiality and Data. Subject to this Section 8, you will keep Services Data in the strictest confidence and protect it using all reasonable and necessary security measures. As between you and us, all right, title, and interest in and to any Services Data will be owned by us and subject to the terms of this Section 8. You may only use the Services Data to evaluate the performance of the Services solely for your internal purposes. Except as expressly provided in this Section 8, you may not, nor will you allow any third party to, use, distribute, disclose, sell, or otherwise monetize Services Data in any manner, including using Services Data for retargeting a user of any Herbpon Network Property or appending data to a non-public profile regarding a user of any Herbpon Network Property for purposes other than using the Services. 9. Terms of the Agreement. The term of this Agreement will begin upon your acceptance of this Agreement and will end when terminated by either party. Each party may terminate this Agreement at any time, with or without cause, by providing notice to the other party as set forth in this Agreement. Upon termination, all rights and obligations of the parties under this Agreement will end, except that fees accrued in connection with the Services as of the date of termination, if any, all interest thereon and costs of collection must be paid and Sections 2-10 and 12-21 will survive termination. 10. Modification. We may modify any of the terms and conditions contained in this Agreement (including the Program Policies) at any time and in our sole discretion. Any modifications will be effective upon the posting of a change notice or a new agreement on the Sponsored Ads Site, or by sending you an e-mail notification. You are responsible for reviewing these locations and informing yourself of all applicable changes or notices. Modifications may include, for example, changes in payment procedures and Program Policies. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN OR USE OF THE SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE SPONSORED ADS SITE OR SENDING YOU AN E-MAIL NOTIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION.
11. Relationship of Parties. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section. 12. Representations. You represent and warrant to us that: (a) if you are a business or other legal entity, you are a business or other legal entity duly organized, validly existing and in good standing under the Laws of the country in which your business or other legal entity is registered, and you are registering for or using the Services within such country; (b) you have all requisite right, power and authority to enter into this Agreement and perform your obligations and grant the rights, licenses and authorizations you grant hereunder; (c) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in connection with your use of the Services and in your performance of your obligations and exercise of your rights under this Agreement; (d) nothing in Your Materials is false, misleading, defamatory, libelous, slanderous, illegal, harassing or threatening, or infringes or misappropriates the proprietary rights, including Intellectual Property Rights, of any third party; (e) your API Partner will not disclose any Confidential Information to any third party, and your API Partner will not use any Confidential Information generated or collected in connection with the Services for any purpose other than creating, managing, and reporting Your Ads; (f) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (g) you will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology ("Items") to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.