ImagesPay Terms of Service

These Terms of Service (this "Agreement") constitute a legal agreement between you ("strong>Publisher") and Linsberry Media, LLC ("ImagesPay") concerning ImagesPay's performance of certain advertising network services, which are referred to in this Agreement as "ImagesPay Ad Services." By submitting this application for ImagesPay Ad Services, you are indicating acceptance of this Agreement by you and, if applicable, the business entity on whose behalf you receive the ImagesPay Ad Services and signify your agreement to be bound by the terms and conditions of this Agreement. If you are receiving the ImagesPay Ad Services on behalf of another company, such as your employer or a client, you represent that you have the authority to bind such company to this Agreement. If you do not agree with all of the terms and conditions of this Agreement, please do not register for the ImagesPay Ad Services and ImagesPay shall have no obligations to you hereunder. ImagesPay may amend this Agreement at any time and any additional or different terms in this Agreement shall be effective upon being posted on this page of ImagesPay's website located at www.ImagesPay.com. Your continued use of the ImagesPay Ad Services and/or acceptance of payment from ImagesPay following the posting of any additional or different terms in this Agreement constitutes your irrevocable acceptance of those additional or different terms.

DEFINITIONS.

  1. "Advertisements" means advertising, which may include, among other things, third party text and video feeds, links to websites, offers, and downloads of third party software applications.
    "Advertising Services" means the all of the advertising services made available by ImagesPay in connection with a content publisher's authorized use of the ImagesPay Technology.
    "Content" means photographic images.
    "ImagesPay Technology" means ImagesPay's proprietary software code that allows ImagesPay to track the display of Content on Publisher Websites.
    "Served Ads" means Advertisements, including interactive overlays and underlays, placed within or adjacent to Content displayed on Publisher Websites in connection with ImagesPay's performance of the ImagesPay Ad Services.

  2. ImagesPay AD NETWORK SERVICES. In order to receive the ImagesPay Ad Services, Publisher must accept this Agreement and register for an account. Upon Publisher's registration, ImagesPay will provide Publisher with a password for accessing its account. During the term of this Agreement, Publisher will be granted access to a Web-based "Control Panel" tool for use in managing Publisher's account, including specifying from time to time the Advertising Services that Publisher elects to receive (the "ImagesPay Ad Services") and those Advertising Services that Publisher elects not to receive. Publisher is solely responsible for maintaining the confidentiality of its account password and for all activities that occur through the use of Publisher's account. Publisher shall immediately notify ImagesPay of any unauthorized use of the password or Publisher's account. ImagesPay will not be liable for any loss or damage arising from Publisher's failure to comply with this section. ImagesPay will provide the ImagesPay Ad Services to Publisher, subject to Publisher's compliance with all of the terms and conditions of this Agreement. So long as the ImagesPay Technology is installed or integrated with Publisher Websites, ImagesPay shall have the exclusive right to sell and serve Advertisements within Content displayed on such Publisher Websites, which may include, serving third party text and video feeds, serving links to websites, offers and downloads of third party software applications and installing pixels on Publisher Websites in connection with its performance of the ImagesPay Ad Services. ImagesPay reserves the right to refuse to place Advertisements on any Publisher Website if ImagesPay determines, in its sole discretion, that such Publisher Website or any content displayed on such Publisher Website is illegal, in violation of this Agreement or an agreement between ImagesPay and an advertiser, violates any third party's rights or ImagesPay's advertising network policies as updated from time to time. ImagesPay assumes no responsibility for the content, functionality, security, services, data usage policies or practices of any third party advertiser or the content, functionality, products or services associated with any Served Ad. Publisher is responsible for any Internet connection fees that it incurs when accessing the ImagesPay Ad Services.

  3. PUBLISHER OBLIGATIONS. Publisher will (a) install and integrate the ImagesPay Technology into Content displayed on Publisher Websites in accordance with this Agreement; (b) permit ImagesPay to monitor and validate Publisher's use of the ImagesPay Technology; (c) immediately report to ImagesPay any problems with the ImagesPay Technology; (d) use best efforts to prevent unauthorized use of the ImagesPay Technology; and (e) immediately report to ImagesPay any violation or alleged violation of ImagesPay's intellectual property rights. Publisher acknowledges that the ImagesPay Technology employs cookies that are stored on computers used by end-users who visit the Publisher Websites and such cookies transmit navigational, behavioral and tracking information about the end-users' use of such Publisher Websites to ImagesPay and ImagesPay's vendors and service providers. In addition to the foregoing obligations, Publisher shall accurately disclose in all applicable privacy policies posted on the Publisher Websites that third parties may place and use cookies on users' browsers or use web beacons to collect information in connection with Served Ads. Publisher, and not ImagesPay, is solely responsible for the operation of the Publisher Websites (including, without limitation, all content and materials displayed on Publisher Websites and the transmission of data between Publisher Websites and ImagesPay) and for the display of, or any failure to display, Content.

  4. PUBLISHER RESTRICTIONS. Publisher shall not, nor permit any third party to, (a) copy, edit, modify, repurpose or transform, to any extent and in any manner whatsoever, any Served Ad or any link contained within a Served Ad, (b) redistribute any Served Ad, (c) block, obscure, remove, minimize or otherwise interfere with the delivery or display of any Served Ad, (d) insert a link into any Served Ad or otherwise cause an end user to be directed to a Web page other than the Web page that would be accessed by an end user clicking on the Served Ad, (e) frame any Served Ad within, or otherwise display any Served Ad with, any content other than Content or any website or property other than a Publisher Website or otherwise limit the full and complete display of any Web page linked to a Served Ad, (f) insert any code, content or other material between a Served Ad and the Web page linked to the Served Ad, (g) directly or indirectly generate impressions of any Served Ad through any automated or other means by a single user, one or more robots or a software program that attempts to mimic the actions of multiple users, (h) display any Served Ad on any Web page or Publisher Website that contains any pornographic, hate-related, violent or illegal content, or (i) spider, crawl, index or otherwise collect information obtained from Served Ads or from end users clicking on Served Ads. Publisher acknowledges that any violation of this Section 4 is a material breach of this Agreement and in the event of such violation, without limiting any remedy available to ImagesPay, ImagesPay may immediately suspend or terminate the ImagesPay Ad Services and/or this Agreement without allowing Publisher an opportunity to cure the violation.

  5. OWNERSHIP. As between the parties, ImagesPay retains sole ownership of all right, title and interest in and to all software, materials and technology used in providing the ImagesPay Ad Services and all intellectual property and proprietary rights recognized anywhere in the world including, but not limited to, the ImagesPay Technology and ImagesPay's ad serving technology and all trademarks, service marks, and trade names used by ImagesPay in connection with the ImagesPay Ad Services ("ImagesPay Intellectual Property"). Publisher will not acquire any right, title or interest in or to any ImagesPay Intellectual Property, except as expressly set forth in this Agreement.

  6. LICENSE GRANT. Subject to all of the terms and conditions herein, ImagesPay grants to Publisher a non-exclusive, non-sublicenseable, non-transferable license to install and integrate the ImagesPay Technology on the Publisher Websites and use the ImagesPay Technology only in connection with the ImagesPay Ad Services. ImagesPay reserves all rights in the ImagesPay Technology not expressly granted in this Agreement. Publisher shall not (a) copy, reproduce, modify, adapt, translate, prepare derivative works of or, republish, upload, post, transmit, or distribute any ImagesPay Intellectual Property; (b) reverse assemble, reverse compile, reverse engineer or in any way derive or attempt to derive from the ImagesPay Technology any source code or the structure, sequence or organization of such code; (c) use the ImagesPay Technology in connection with any website or content that infringes upon any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party, or which Publisher does not have the right to transmit under any law, contract, or fiduciary relationship; (d) use the ImagesPay Technology to upload, post, email, or otherwise transmit anything that contains worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of the ImagesPay Technology, or any hardware, or telecommunications equipment; (e) change the name of any data file included within the ImagesPay Technology; (f) use the ImagesPay Technology to interfere with the normal functioning of any servers or computer or communications network; (g) use the ImagesPay Technology to violate any local, state, national or foreign law or regulation; or (h) sublicense, assign or otherwise transfer the ImagesPay Technology, this Agreement or the rights under it, whether by operation of law or otherwise, without ImagesPay's prior written consent and any such attempted transfer without ImagesPay's prior written consent shall be null and void and a material breach of this Agreement.

  7. TERM AND TERMINATION. This Agreement shall continue in effect until terminated by either party. Publisher may terminate this Agreement at any time by (a) removing the ImagesPay Technology from the Publisher Websites, (b) terminating the ImagesPay Ad Services through Publisher's account or (c) terminating Publisher's account. Upon any termination of this Agreement, Publisher shall promptly remove the ImagesPay Technology from the Publisher Websites and ImagesPay shall have no further obligation to provide the ImagesPay Ad Services. In addition, ImagesPay may immediately suspend the ImagesPay Ad Services and/or terminate this Agreement if it has reason to believe Publisher has committed a material breach of any provision of this Agreement. Following termination of this Agreement, ImagesPay will perform a final accounting of amounts payable to Publisher hereunder and, subject to ImagesPay's right to offset the earned balance of amounts due to Publisher against amounts determined by ImagesPay to be in error or the result of fraud or any act by, or at the direction of Publisher, in violation of this Agreement, ImagesPay will pay the earned balance of amounts due to Publisher hereunder within approximately ninety (90) days following the last day of the month in which this Agreement is terminated. Termination of this Agreement shall not prejudice either ImagesPay's rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement. The following sections of this Agreement shall survive termination of this Agreement: Sections 1, 5 and 9 â?? 17.

  8. PAYMENT. Subject to Publisher's compliance with all of the terms and conditions of this Agreement, Publisher will be entitled to receive a payment based upon the revenue that ImagesPay receives from the placement of the Served Ads. Publisher acknowledges and agrees that ImagesPay's measurements relating to Served Ads including, without limitation, the number of impressions and clicks used in calculating amounts payable to Publisher shall be definitive and Publisher may not raise any objection to such measurements. ImagesPay will send payments to Publisher within thirty (30) days after the end of each month that Served Ads are placed on Publisher Websites if Publisher's earned balance is $50 or more. Notwithstanding the foregoing, ImagesPay shall not be liable for any payment based on: (a) any amounts which result from invalid impressions of Served Ads generated by any person, bot, automated program or similar device, as reasonably determined by ImagesPay including, without limitation, through any impressions (i) originating from Publisher's IP addresses or computers under Publisher's control; or (ii) solicited by payment of money, false representation, or any illegal or otherwise invalid request for end users to view Served Ads;, (b) Served Ads delivered to end users whose browsers have JavaScript disabled; or (c) impressions resulting from any breach of this Agreement by Publisher for any applicable pay period. ImagesPay reserves the right to withhold payment or charge back Publisher's account due to any of the foregoing or any breach of this Agreement by Publisher, pending ImagesPay's reasonable investigation of any of the foregoing or any breach of this Agreement by Publisher, or in the event that an advertiser whose Advertisements are displayed in connection with Publisher Websites defaults on payment for such Advertisements to ImagesPay. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Publisher's account. Publisher is solely responsible for all federal, state, local or other applicable taxes that might apply to Publisher in respect of payments received by Publisher and any other charges imposed by any government entity in connection with this Agreement or the performance of the ImagesPay Ad Services. If Publisher disputes any payment made under this Agreement, Publisher must notify ImagesPay in writing within thirty (30) days of any such payment; failure to so notify ImagesPay shall result in Publisher's waiver of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by ImagesPay. No other measurements or statistics of any kind shall be accepted by ImagesPay or have any effect under this Agreement. Publisher right to receive payments made under this Agreement may not be transferred or in any manner passed on to any third party unless expressly permitted in this Agreement or authorized in writing by ImagesPay in advance (including by email).

  9. CONFIDENTIALITY. Publisher acknowledges that all data, information, documents, software or materials relating to ImagesPay, or its shareholders, publishers, licensors, licensees or advertisers, that is designated as confidential or that a reasonable person would consider to be confidential including, but not limited to, plans, software, technology, programming, specifications, materials, guidelines, processes, products, designs, pricing, promotions, finances, research, development, know-how and trade secrets and documentation relating to the ImagesPay Ad Services or numbers of impressions or other information relating to Served Ads provided by ImagesPay ("Confidential Information") may be disclosed to Publisher during the course of this Agreement. Publisher agrees that during and after the term of this Agreement Publisher will not use any Confidential Information other than as necessary to receive the ImagesPay Ad Services in accordance with this Agreement or to the extent necessary to perform Publisher's obligations under this Agreement and Publisher will not disclose to any other person or entity any such Confidential Information, except as specifically authorized under this Agreement.

  10. REPRESENTATIONS AND WARRANTIES. Publisher represents and warrants that (a) it has the legal authority to enter into this Agreement, has the right to permit ImagesPay to perform ImagesPay Ad Services contemplated to be provided under this Agreement and has obtained all necessary rights from third parties (including, without limitation, rights from owners of the Content) for ImagesPay to perform ImagesPay Ad Services and (b) none of the Publisher Websites, nor any content displayed thereon, (i) infringes or will infringe any rights of any third party including, without limitation, intellectual property rights, contract rights and rights of privacy and publicity, (ii) violates any applicable laws, rules or regulations, (iii) is defamatory, fraudulent, misleading or inaccurate or (iv) contains any pornographic, violent or hate-based imagery.

  11. NO WARRANTY. ImagesPay AD SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND ImagesPay MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ImagesPay AD SERVICES INCLUDING, WITHOUT LIMTATION, ANY WARRANTY THAT ImagesPay SERVICES WILL (A) BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) MEET PUBLISHER'S REQUIREMENTS OR EXPECTATIONS, (C) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECTED, OR (D) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT ALLOWED BY LAW, ImagesPay EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ImagesPay AD SERVICES, THE CONTENT OF SERVED ADS, THE CONTENT AND PUBLISHER WEBSITES.

  12. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL ImagesPay, ITS PUBLISHERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, LICENSEES OR ADVERTISERS BE LIABLE UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, EVEN IF ImagesPay WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, CONTENT OR OTHER INTANGIBLES, (C) DAMAGES RESULTING FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CONTAMINATION OR DESTRUCTIVE PROGRAMS, (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR (E) ANY AMOUNT IN EXCESS OF ONE THOUSAND DOLLARS ($1000). THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 12 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO PUBLISHER. IN SUCH JURISDICTIONS, THE LIABILITY OF ImagesPay OR ANY OF ITS PUBLISHERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, LICENSEES OR ADVERTISERS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

  13. INDEMNITY. Publisher agrees to defend, indemnify and hold ImagesPay and its publishers, directors, officers, shareholders, employees, agents, licensors, licensees and advertisers harmless from and against any and all third party claims, suits, demands, loss, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) arising from or relating to (a) Publisher's breach of any of the terms and conditions of this Agreement or (b) Publisher's violation of any applicable law, statute, ordinance, regulation or any third party's rights including, but not limited to, patent, copyright or trademark infringement, dilution or tarnishment of any third party's trademark or violation or misappropriation of any other intellectual property rights, or any claim of defamation, libel or slander or privacy violation. This obligation shall survive the termination and/or expiration of this Agreement.

  14. FORCE MAJEURE. ImagesPay shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, act of terrorism, war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slowdown or any other event or condition beyond ImagesPay's control.

  15. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Except as provided in Section 16, the parties hereby consent to the exclusive jurisdiction of the California state and U.S. federal courts located in the County of Los Angeles, California for all disputes arising from or relating to this Agreement and/or ImagesPay's performance, or Publisher's use, of the ImagesPay Ad Services.

  16. MEDIATION. In the event any dispute or claim arises out of or relating to this Agreement, Publisher and ImagesPay will attempt in good faith to negotiate a written resolution of the matter. If the dispute remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, the parties shall join in mediation services in Los Angeles, California with a mutually agreed mediator in an attempt to resolve the dispute. Should Publisher file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then Publisher agrees that it will not be entitled to recover attorney's fees, even if it would otherwise be entitled to them.

  17. GENERAL. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. This Agreement may not be modified except by a written instrument signed by both parties. This Agreement will be binding on and will inure to the benefit of each party's legal representatives, successors and permitted assigns. ImagesPay may assign this Agreement in whole or in part at any time without Publisher's consent. This Agreement is personal to Publisher and Publisher may not assign this Agreement or delegate any of its obligations hereunder, except in the event of a third party's acquisition of all or substantially all of Publisher's stock, assets or business to which this Agreement pertains, provided that Publisher provides ImagesPay with not less than thirty (30) days prior written notice of such acquisition. Any purported assignment by Publisher, other than as expressly permitted hereunder, shall be null and void. Unless otherwise provided in this Agreement, all notices provided under this Agreement shall be (a) in writing and effective upon receipt, if delivered by overnight courier service with tracking capabilities, or within three (3) days after deposit in the mails if delivered by certified mail, return receipt requested, postage prepaid and (b) sent to the address specified on the first page of this Agreement or such other address as a party may specify in a notice to the other party. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect. Headings used in this Agreement are for convenience only and have no legal or contractual significance.