Last Updated: 2023-07-20
Mrge Americas, Inc. with offices at Suite 1700, Park Place 666 Burrard Street, Vancouver, BC, V6C 2X8 (“SourceKnowledge”, “we”, “us” or “our”) is pleased to provide you with the opportunity to participate in our Publisher Program (“Program“). “Publisher”, “you” or “your” means the person executing these Terms, and the legal entity they represent (if any), who controls a Site or makes Ad Inventory available through SourceKnowledge’s Services, even if you use a third party to do so on your behalf. The following sets forth the terms and conditions for the Program (“Terms”). Participation in the Program is subject to these Terms, our acceptance of your application to participate in the Program, and your satisfaction of the Eligibility Requirements described below, as we determine in our sole and absolute discretion.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE APPLICATION PROCESS OR USING SOURCEKNOWLEDGE’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT AS DEFINED BELOW. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY. IF YOU DO NOT HAVE SUCH LEGAL AUTHORITY OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THESE TERMS OR SUBMIT YOUR APPLICATION TO THE PROGRAM.
IMPORTANT: BY AGREEING TO THESE TERMS, YOU AGREE TO RESOLVE DISPUTES WITH SOURCEKNOWLEDGE THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT) AND ON AN INDIVIDUAL BASIS.
Please note that these Terms do not govern the relationship between SourceKnowledge and Advertisers. Such relationship shall be subject to a separate agreement located here.
“Account” means your Publisher account for this Program created following acceptance of your application.
“Ad” or “Advertising” or “Advertising Content” means a commercial notice, announcement, message made or any other type of advertising material or content, in any format and however delivered, together with related code and other material used for the placement and display of such material or content in a public medium to customers or prospective customers to promote a person, entity, brand, product, service, or event.
“Ad Inventory” means any media space on the Site made available by Publisher for purchase through the Services for the display of Advertising.
“Advertiser” means any party engaged in facilitating the purchase of Advertising through the Services, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, direct ecommerce website, or any provider of goods or services advertised and representative thereof.
“Agreement” means, collectively: (i) these SourceKnowledge Terms, (ii) any exhibits, schedules or appendices attached thereto or incorporated by reference, and (iii) any amendments to any of the foregoing agreed upon in writing or otherwise issued by SourceKnowledge.
“Applicable Data Protection Laws” means any and all privacy and data protection laws, rules and regulations, together with self-regulatory industry codes and principles, applicable to the parties’ performance under this Agreement.
“Campaign Data” means performance and measurement data collected by SourceKnowledge as a result of the SourceKnowledge Shopping Ads made available through the Platform that relates to Advertising Content launched through the Services.
“Advertiser Content” means all logos, trademarks, images, graphics, text, and other materials included by Advertiser in the Ads provided to SourceKnowledge for use with the Services.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the registration or grant of any such rights.
“Net Revenue” means revenue generated by SourceKnowledge Shopping Ads on Publisher Site(s).
“Payment” means the remuneration, on a Cost-Per-Click Publisher receives for displaying SourceKnowledge Shopping Ads via Ad Inventory purchased through the Services.
“Platform” means the SourceKnowledge website, dashboard, and tools that Publisher has access to through the Services to make available Ad Inventory.
“Platform Policies” means, collectively: (i) any specifications, technical documentation, or integration requirements made accessible to Publisher by SourceKnowledge in connection with the Technology; and (ii) requirements, prohibitions, and guidelines applicable to Publisher’s integration with or use of the Services imposed by SourceKnowledge or a third party, as updated from time to time; in each case which may deal with or respond to, among other things, changes in laws or regulations, industry or technology developments, emerging risks, or evolution of the Services or Project Materials, and which are made available to Publisher via the Services of the applicable service or otherwise made known to Publisher.
“Prohibited Content” means any content or material that: (i) violates any applicable law, rule or regulation; (ii) promotes violence, discrimination, hatred, peer-to-peer applications, networks or sites, copyright protection circumvention, or unlawful subject matter or activities; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; or (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit.
“Program” means the SourceKnowledge Channel Partner Network to make Ad Inventory available to Advertisers.
“Services” means each SourceKnowledge product, platform, or service provided or made accessible to Publisher, including without limitation the Platform.
“Site” means Publisher’s website.
“SourceKnowledge Materials” means Technology and any other information or data that belongs to SourceKnowledge.
“SourceKnowledge Shopping Ads” means the Ads and Advertising Content that we make available to Publisher through the Services and Platform.
“Technology” means any proprietary or confidential technology or materials of SourceKnowledge: (i) made accessible to Publisher or (ii) made accessible to third parties and/or affiliates by Publisher or at Publisher’s request in accordance with and as permitted by the terms of the Agreement, including any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”), used to effect or facilitate a provided Service.
“User” means any natural person that is a visitor to, or other end-User of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone, or browser) used by such natural person or other end-User to visit, access, or use any such website, portal, device, application, or other online service.
“User Data” means information that is specific to or attributable to a User, which may include location, device identifier, and other data collected via the Site or the SourceKnowledge Shopping Ads on the Site that is received by Publisher through its participation in the Services.
This Agreement constitutes a binding legal agreement between you, or if accepting on behalf of an entity, such entity and SourceKnowledge which governs your participation in the Program and receipt of the Services. By completing and submitting your application you agree to be bound by this Agreement. You also understand that any participation in the Program represents your acceptance of and agreement to comply with all of these Terms. If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that you have authority to bind such company or other entity to this Agreement.
- Our Service and the Program
The SourceKnowledge Program is a CPC platform connecting Advertisers that have registered with SourceKnowledge to website publishers interested in monetizing their website by integrating Ads.
To apply for the Program, you must submit to us a complete and accurate application, including your relevant contact information, and the name and URL of your Site that you wish to enroll in the Program. Please note that the application only permits the registration of a single Site. If you have more than one Site that you wish to enroll in the Program, you must submit those separately to SourceKnowledge for approval via the sign up form. We will evaluate your application(s) and notify you whether your Site(s) are accepted. We may reject your application for any or no reason, in our sole and absolute discretion, including but not limited to a failure to meet the Eligibility Requirements set forth below. Note that if we accept your application and later determine that your Site is unsuitable or that you fail to meet the Eligibility Requirements or comply with these Terms, we may terminate your participation in the Program effective immediately as further set forth below in Section 15.
- Program Eligibility
Your eligibility for participation in the Program and ongoing eligibility to remain in the Program is conditioned upon you meeting and continuing to meet the following minimum requirements (“Eligibility Requirements“):
(a) You have submitted and received our approval of your application;
(b) You are at least eighteen (18) years old;
(c) You have the necessary rights and authority to enter into and perform these Terms;
(d) You are the registered owner of the Site listed on the application, including all domain names;
(e) All information you have provided to us, including but not limited to information provided in the application and all other information about your business provided in connection with the Program, including all relevant payment information, is and will remain accurate, complete, and current;
(f) You and your Site(s) are not subject to any pending lawsuits, fines, or government or regulatory actions; and
(g) You will provide us with any information, records, or materials that we request to verify your compliance with the Eligibility Requirements, these Terms, and the Agreement.
- Representations About Your Site
You represent and warrant that for so long as you participate in the Program, your Site (including any content contained therein), its content, and all activity related to the same:
(a) does not violate any law or regulation;
(b) does not infringe or misappropriate in any manner any copyright, patent, trademark, trade secret or other Intellectual Property Right of any third party;
(c) does not contain false, misleading or objectionable content (including but not limited to content that is obscene, containing excessive advertisements, defamatory, libelous, threatening, violent, hate-oriented, illegal or promoting illegal activities or goods);
(d) does not contain viruses, worms, spyware, Trojan horses or other harmful, malicious or destructive code;
(e) does not breach any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and
(f) is in full compliance with all applicable laws and regulations, including without limitation those requiring any affirmative disclosures on your Site regarding your endorsement of any products or services in any Ads featured on your Site.
- SourceKnowledge Shopping Ads
(a) Subject to your continued compliance with the Terms (including the Eligibility Requirements noted above), you may present SourceKnowledge Shopping Ads only on those Sites you have enrolled in the Program and that are approved by us in our sole discretion. For the avoidance of doubt, placing SourceKnowledge Shopping Ads on any Site that was not approved by us is strictly prohibited and you are not entitled to payment for any traffic from such unauthorized Sites. If requested by SourceKnowledge, you will present the SourceKnowledge Shopping Ads to Users of your Site in a form and manner and using creative elements as specified by SourceKnowledge from time to time. You will direct the SourceKnowledge Shopping Ads to the internet location(s) indicated to you by SourceKnowledge.
(b) You agree that you will not alter, modify, circumvent, impair, disable, or otherwise interfere with the SourceKnowledge Materials or any SourceKnowledge Shopping Ads or any Advertising Content related to the same. You further agree to make updates to the SourceKnowledge Shopping Ads and associated Advertising Content or their implementation on or in connection with your Site as and when requested by SourceKnowledge.
- Your Information
You understand and agree that we can and will (a) send you emails relating to the Program and your participation in the Program from time to time; (b) monitor, record, use, and disclose information about your Site and Users on your Site that we obtain in connection with your display of SourceKnowledge Shopping Ads, which we may use for marketing our Services and Platform to Advertisers; and (c) monitor, crawl, and otherwise investigate your Site to verify compliance with the Terms.
- Payment and Reporting
You agree as follows:
(a) For each month or portion thereof in which you participate in the Program, SourceKnowledge will make a Payment to you based upon the Net Revenue received by SourceKnowledge from valid Users’ clicks on SourceKnowledge Shopping Ads on your Site in such period, as determined by SourceKnowledge’s standard tracking method. Notwithstanding the foregoing, you understand and agree that your ability to earn Payments under this Program are expressly conditioned upon your satisfaction and continued compliance with the Eligibility Requirements set forth above, including providing and maintaining accurate payment information associated with your Account. If at any time you fail to satisfy the Eligibility Requirements, any Payments otherwise payable to you during the period of such failure will be deemed unearned and will not accrue to your Account due to your ineligibility for participation in this Program. We will grant you access to an online reporting tool to view traffic activity and estimated Payments generated by SourceKnowledge Shopping Ads from your Site during the Term. You understand and agree that SourceKnowledge shall have the right in its sole discretion to credit, adjust or discount charges to Advertisers based on its determination of quality of traffic or source (e.g., non-US) generated via the SourceKnowledge Shopping Ads and to offset future Payments to you based on such credits or adjustments to Advertisers for traffic generated by your Site. You further agree that SourceKnowledge shall have no obligation to issue any Payment(s) to you if SourceKnowledge has not received remittance from the relevant Advertiser of all monies due to SourceKnowledge. In the event of such non-payments or bad debts, SourceKnowledge reserves the right to offset future Payments to you or invoice you for such amount owed in its sole discretion. Your recourse for any such adjustment due to non-payment shall be to make a claim against the relevant Advertiser, and SourceKnowledge disclaims any and all liability for such Payments.
(b) Subject to these Terms, including, without limitation, your satisfaction of and continued compliance with all Eligibility Requirements, SourceKnowledge will issue the Payment for the previous month’s activity thirty (30) days after the last day of that month, subject to a minimum Payment of fifty dollars ($50.00), or such other minimum payment as SourceKnowledge may establish (“Minimum Payment”). Account balances of less than the minimum Payment will remain in your Account until a balance of the minimum Payment is met. SourceKnowledge will make one or more methods by which to receive Payments available to you, in our sole discretion. Notwithstanding the foregoing, for any Payment(s) that is less than a certain monetary threshold as determined by SourceKnowledge, in its sole discretion, SourceKnowledge reserves the right (but has no obligation) to issue such Payment(s) to you via PayPal to the email address on file or by cheque in your Account. All Payments under these Terms will be made in U.S. Dollars. We reserve the right to assess a charge on your Account of ten dollars ($10.00) for each attempted issuance of a Payment to you which is returned or undeliverable.
(c) We reserve the right to suspend, withhold or adjust any Payment to you in the event of any suspected or actual violation of this Agreement or any part thereof, or other policy or guideline established by SourceKnowledge in connection with the Program (including, but not limited to reviews of merchant credit requests), and in particular we reserve the right to suspend, withhold or adjust any Payment based on any amounts which result from clicks generated by any person, robot, automated program or similar device, as reasonably determined by SourceKnowledge, including without limitation any valid clicks co-mingled with invalid clicks. You agree to forfeit and/or have offset any Payments made which are determined by SourceKnowledge (in our sole and absolute discretion) to have been generated by you or from your Site in violation of this Agreement, these Terms or other policy or guideline established by SourceKnowledge in connection with the Program.
(d) You agree to pay all applicable taxes, including any applicable value added tax (VAT) or other similar taxes, imposed by any government entity in connection with your participation in the Program. You are solely responsible for providing and maintaining accurate contact and payment information in connection with your participation in the Program. U.S. taxpayers must provide, among other information, a valid U.S. tax identification number and a fully-completed Form W-9. Non-U.S. taxpayers must provide either a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, and signed certification that the taxpayer does not have U.S. activities as required by the U.S. tax authorities.
(e) Any questions or claims by you regarding any charges or Payments must be raised with us in writing within sixty (60) days after the date such charges are accrued or Payments issued, or else the charges or Payments will be deemed final and will not be subject to any further claims or disputes. No refunds, credits or other billing adjustments will be made if a question or dispute is not asserted by you in writing within sixty (60) days of the date on which the applicable charges are accrued or Payments issued. Payment shall be calculated solely based on records maintained by SourceKnowledge.
- Program Management
We reserve the right, in our sole absolute discretion, to change all or any part of the Program or these Terms and/or other policies or guidelines related to the Program, including but not limited to prohibiting certain Site content, changing the basis of compensation and/or changing the Payment schedule. We further reserve the right to change or discontinue the Program altogether. If you do not agree with a change or update to the Terms or the Program, your sole and exclusive remedy is to terminate the Terms, remove all SourceKnowledge Shopping Ads from your Site and end your participation in the Program. We will provide you notice of any such changes through your Account or otherwise through notice to you. Your continued participation in the Program following such notice will constitute your acceptance of such changes.
- Prohibited Activities
You agree that you will not (and will not permit or encourage any other person or company to) engage in any of the following activities:
(a) artificially inflate traffic counts to the SourceKnowledge Shopping Ads or Advertisers using any robot, automated program or similar device or other means, (including manual), or permit, allow or encourage anyone else to do so. You further agree not to place SourceKnowledge Shopping Ads in search engine advertising, newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks;
(b) place SourceKnowledge Shopping Ads in a misleading way for any User, obscuring or partly obscuring the SourceKnowledge Shopping Ads from any User’s view;
(c) click on, or provide Users of your Site or any other party any incentives or encouragement to click on the SourceKnowledge Shopping Ads (including but not limited to displaying “support this Site” content);
(d) modify, alter, impair or disable or otherwise interfere with the SourceKnowledge Shopping Ads or SourceKnowledge Materials or other application or process established by SourceKnowledge in connection with the Program, including display of any web page or other content as an alternative to the web page directed by SourceKnowledge for the SourceKnowledge Shopping Ads;
(e) disparage the Program, SourceKnowledge, participating Advertisers or other third parties, or otherwise make statements or take actions that would or might harm the business of SourceKnowledge or otherwise be detrimental to its interests;
(f) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise in connection with the Program;
(g) display SourceKnowledge Shopping Ads on any page within your Site that also includes or features: (1) unlawful, defamatory, threatening, pornographic, or otherwise objectionable material of any kind or nature, (2) any material that encourages conduct that could constitute a criminal offense, or (3) that infringes or violates the Intellectual Property Rights or rights of publicity of others;
(h) use the Technology in a manner not authorized by these Terms; or
(i) overwrite a URL in a web browser by any means.
- Data Protection and Privacy
(b) In the event Publisher’s Site is directed towards children under the age of 13 or knowingly collects information from Users under the age of 13, Publisher must identify the Site as a “Kid Site” when making available Ad Inventory. Without limiting the above, if Publisher’s Site is a Kid Site, Publisher must comply with the Children’s Online Privacy Protection Act. SourceKnowledge has no obligation to monitor COPPA compliance. Nothing in this section shall be construed as limiting Publisher’s obligations to comply with other Applicable Data Protection Laws.
(c) SourceKnowledge provides no warranty, representation, or guarantee that Publisher’s use of the Services, access to the Platform, or participation in the Program complies with any Applicable Data Protection Laws. Publisher is solely responsible for their own legal compliance and ensuring that its Site, use of the Services and Platform, and participation in the Program complies with Applicable Data Protection Laws.
(d) Publisher shall not permit any third party to use or gain access to the Platform or Services and shall use reasonable security measures to protect against unauthorized usage and/or access. Publisher is responsible for selecting and continuously managing its password and security settings to protect Publisher’s Account (including Publisher’s contact and payment information) from unauthorized changes. The Publisher is entirely responsible for maintaining the confidentiality and secrecy of Publisher’s password and the Account’s security settings. All consequences of Publisher’s disclosure of password and Account information, as well as all activities that occur in Publisher’s Account are Publisher’s responsibility. Publisher agrees to notify SourceKnowledge immediately of any unauthorized use of Publisher’s Account or any other breach of security of which Publisher becomes aware.
(e) Publisher acknowledges that SourceKnowledge is not the system of record for any Publisher data, including without limitation any User Data or Campaign Data, such that SourceKnowledge shall have the right to delete all such data in accordance with SourceKnowledge’s data retention policies.
(f) Publisher agrees to reasonably assist SourceKnowledge in performing any audits if and to the extent such audit is required by Applicable Data Protection Laws no more than once per calendar year unless otherwise dictated by Applicable Data Protection Law. SourceKnowledge will give Publisher at least thirty (30) days’ advance written notice prior to conducting any such audit and to the extent feasible such audit will be scheduled to occur at a time mutually agreed to by the parties. SourceKnowledge will conduct any such audit during regular business hours and without unreasonable disruption to Publisher’s operations. In any event, any such audit will not require Publisher to provide SourceKnowledge with access to the confidential information of Publisher not applicable to this Agreement and compliance with the same.
(g) Publisher authorizes SourceKnowledge to engage subcontractors in order to provide the Services and Platform, provided that SourceKnowledge: (a) complies with the Applicable Data Protection Laws; (b) ensures any such subcontractor is bound by contractual terms at least as protective and stringent as those of this Agreement; and (c) will remain responsible for the performance of any Services by any subcontractor. SourceKnowledge will disclose such subcontractors to Publisher upon written request and if Publisher has any objection to any such subcontractor the parties will work in good faith to resolve such issue. Should such resolution prove impossible or impracticable, Publisher may terminate this Agreement, which is Publisher’s sole and exclusive remedy and SourceKnowledge’s sole and exclusive obligation.
You hereby agree to defend, indemnify and hold harmless SourceKnowledge, its affiliates and Advertisers and each of their respective directors, officers, employees, contractors, and licensors (“SourceKnowledge Indemnified Parties”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees and costs (“Claims”), that the SourceKnowledge Indemnified Parties may suffer as a result of: (a) claims that arise from or relate to your participation in the Program or any other SourceKnowledge Service; (b) any actual or alleged breach by you of this Agreement or these Terms or of any representation made by you or obligation entered into by you hereunder; (c) any claim of violation of a third party’s privacy rights or Applicable Data Protection Laws, or (d) any claim relating to your Site or any content thereon, including any claim of infringement or misappropriation of any other party’s Intellectual Property Rights or proprietary rights.
SourceKnowledge hereby agrees to defend, indemnify and hold harmless Publisher and its directors, officers and employees (“Publisher Indemnified Parties”) from any and all third-party Claims that the Publisher Indemnified Parties may suffer as a result of a claim that the Platform violates a third party’s valid U.S. or Canadian trademark, trade secret or copyright, except to the extent that such claim arises in any way related to the Site or Ads.
The parties agree that in seeking any indemnification hereunder, the party seeking indemnification (the “Claimant”) shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of the claim triggering the indemnification being sought; (ii) grant the Indemnifying Party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information, and authority reasonably required for the defense of the claim. Failure of the Claimant to promptly notify the Indemnifying Party shall only relieve Indemnifying Party of its obligation to the extent it can demonstrate material prejudice from such failure. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) without the prior written consent of the Claimant, which consent shall not be unreasonably withheld or delayed. In addition, any legal counsel sought to be appointed to defend the indemnified claim(s) shall be subject to the prior written consent of the Claimant, such consent not to be unreasonably withheld or delayed.
- Warranty Disclaimers
YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. THE PROGRAM AND ALL SOURCEKNOWLEDGE MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE. NEITHER SOURCEKNOWLEDGE NOR ANY OF ITS AFFILIATES, AGENTS OR ADVERTISERS MAKES ANY WARRANTY, CONDITION OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM OR SERVICES, THE SOURCEKNOWLEDGE MATERIALS, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE SAME. SOURCEKNOWLEDGE HEREBY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL EXPRESS OR IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, (1) AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM OR SERVICES INCLUDING THE SOURCEKNOWLEDGE SHOPPING ADS OR THE SOURCEKNOWLEDGE MATERIALS, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER SOURCEKNOWLEDGE MATERIALS, OR AS TO THE CLICKS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY ANY SOURCEKNOWLEDGE SERVICE OR SOURCEKNOWLEDGE SHOPPING ADS, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (2) ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14 LIABILITY LIMITATIONS
(A) ANY LIABILITY OF SOURCEKNOWLEDGE OR ANY OF ITS AGENTS, ADVERTISERS, OR AFFILIATES INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE BEEN PAID BY SOURCEKNOWLEDGE FOR YOUR PARTICIPATION IN THE PROGRAM IN THE TWO (2) MONTH PERIOD IMMEDIATELY PRIOR TO THE LIABILITY OCCURRING.
(B) IN NO EVENT SHALL SOURCEKNOWLEDGE OR ANY OF ITS AGENTS, ADVERTISERS, OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PROGRAM OR ANY BREACH OR ERROR BY SOURCEKNOWLEDGE OR ITS AGENTS OR ADVERTISERS, WHETHER OR NOT SOURCEKNOWLEDGE HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
(C) THIS LIMITATION ON SUCH DAMAGES SHALL APPLY WHETHER OR NOT SOURCEKNOWLEDGE IS ABLE TO CORRECT ANY PROBLEM OR ERROR, AND WHETHER OR NOT SOURCEKNOWLEDGE HAS BREACHED ANY WARRANTY OR OBLIGATION, OR FAILURE OF THE ESSENTIAL PURPOSE OF ANY OTHER REMEDY, IT BEING THE INTENTION OF THE PARTIES TO ALLOCATE THE RISK OF SUCH DAMAGES AS PROVIDED HEREIN IN ALL CIRCUMSTANCES. YOU ACKNOWLEDGE THAT SOURCEKNOWLEDGE WOULD NOT HAVE ENTERED INTO THESE TERMS OR OFFERED THIS PROGRAM OR SERVICES BUT FOR THIS LIMITATION ON SUCH DAMAGES. NOTHING IN THIS AGREEMENT OR THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM GROSS NEGLIGENCE OR FOR ANY DAMAGE OR LIABILITY INCURRED BY YOU AS A RESULT OF OUR FRAUD OR FRAUDULENT MISREPRESENTATION.
- Term and Termination
These Terms and your participation in the Program will begin upon our acceptance of your application, your satisfaction of the Eligibility Requirements described above, and your agreement to and compliance with these Terms and will end when the Agreement is terminated by either you or us pursuant to these Terms. If you are dissatisfied with the Program or with any changes to the Terms or the Program, your sole and exclusive remedy is to terminate your participation by giving us written notice as provided below and terminating pursuant to Section 9 (Program Management). Notwithstanding anything contained in the Terms to the contrary, we may, in our sole and absolute discretion, terminate these Terms or suspend or terminate your Account and/or discontinue your participation in the Program or any other SourceKnowledge Service, effective upon notice to you, at any time and for any reason, including but not limited to: (a) actual or suspected failure to meet the Eligibility Requirements; (b) actual or suspected violation of Section 10 (Prohibited Activities); (c) failure to generate at least twenty-five ($25.00) in Payments, in the aggregate, over the course of twelve (12) consecutive months; (e) failure to provide accurate or complete payment information within twelve (12) months after notice of such deficiency has been issued; or (f) any other actual or suspected violation of these Terms. All decisions made by us in this matter will be final and you agree that we shall have no liability with respect to such decisions. You understand and acknowledge that you do not have any vested right or enforceable interest to participate in the Program.
- Effect of Termination
Upon termination of these Terms, whether by you or us, you may, except as otherwise provided herein, receive Payments owed to you up to the effective date of termination. In addition, upon any termination, all license rights and other privileges granted to you herein shall terminate immediately, and you shall immediately cease use of any SourceKnowledge Materials, including the immediate removal of all SourceKnowledge Shopping Ads.
We may give general notices to participating publishers (including you) by postings on the Program portion of our websites (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to the email address on file within your Publisher Account or otherwise by postal mail, overnight delivery service or in person. Any such notice shall be deemed received by you and effective (i) on the date that SourceKnowledge sent the notice via email; or (ii) two (2) days from the date SourceKnowledge sent the notice if by postal mail or overnight delivery service. You may give notice to us by Contacting Us, or otherwise by postal mail or overnight delivery service to:
1001 Blvd. De Maisonneuve West,
Montreal, Quebec H3A 3C8
- Force Majeure
We will have no liability to you under the Agreement or these Terms if we are prevented from, or delayed in performing, our obligations or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of SourceKnowledge or any other party), failure of the Internet, a utility service, communications network or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- Confidential Information
You agree not to disclose or share with any third party any confidential or proprietary materials or information regarding SourceKnowledge’s or its affiliates’ respective business affairs that you may have received or had access to by reason of your participation in the Program, the nature of which is clearly confidential or proprietary (“Confidential Information”). You agree to protect such Confidential Information with the same degree of care as you would apply to your own information of a similar nature, but in no event less than reasonable care. You agree that you will not make any use of any such Confidential Information other than as strictly necessary for the purposes of performance of these Terms. You acknowledge that the Confidential Information is the sole and exclusive property of SourceKnowledge. The confidentiality obligations in this clause shall not apply to any information which is or subsequently becomes available to the general public other than through a breach of these Terms or is already known to you before disclosure. Upon termination of these Terms, you shall return or, at our option, destroy all Confidential Information and all copies thereof, provided however that your non-disclosure and duty of care obligations with respect to our Confidential Information shall survive. These Terms supersede any prior confidentiality Terms that may have been signed by you.
- Governing Law; Venue
The Agreement will be governed and interpreted in accordance with the laws of the Province of Quebec, Canada without reference to conflict of laws principles. Jurisdiction and venue for all disputes hereunder shall be exclusive in the courts with jurisdiction in the Province of Quebec, Canada. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
The parties will first attempt to resolve any dispute, claim, question, difference or controversy arising out of or in connection with this Agreement (a “Dispute“) by good faith discussions or email. If the parties cannot resolve a Dispute with good faith discussions, then the parties agree to finally resolve any such Dispute by arbitration, to the exclusion of the courts, pursuant to the provisions of the Code of Civil Procedure (Quebec), Book VII, Title II (Arbitration), except as such provisions are modified by this Section .
The party desiring to initiate arbitration must deliver to the other party a notice that it intends to submit a Dispute for arbitration and the parties will thereafter attempt to mutually agree upon the arbitrator. If the parties cannot agree upon the arbitrator within ten (10) days of the delivery of a Dispute notice, an arbitrator will be appointed by a judge of the Superior Court of Quebec .
The parties agree that arbitration will be conducted before one (1) arbitrator who shall have exclusive authority to resolve any Disputes referred to it, including as to the enforceability and/or formation of this agreement to arbitrate made between the parties. The arbitrator’s decisions and judgment will be made in writing, will be final and binding on the parties and will not be subject to appeal, but will have no precedential effect. The arbitrator shall not have the authority to award damages outside of those set forth in these Terms of Service.
Arbitration will take place exclusively in [Montreal, Province of Quebec], and the language of the arbitral proceedings shall be either English or French or both. The parties agree that the arbitration will be kept confidential and the existence of the proceeding and any element of it (including the subject matter or outcome of any arbitration) will not be disclosed beyond the arbitrator, the parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise or as may be required by law.
Each party shall pay their own expenses and fees, including their own attorneys’ fees, arising from arbitration, unless the arbitrator determines that your claims were improper or frivolous, in which case the arbitrator shall have the jurisdiction to require you to reimburse us for fees and expenses.
Notwithstanding anything to the contrary in this Section, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights.
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, and communications, oral or written, between the parties related to such subject matter. The Agreement shall prevail over any additional or conflicting terms that appear in any document furnished by Publisher to SourceKnowledge. No failure of SourceKnowledge to enforce any of its rights under the Agreement will act as a waiver of such rights. Any provision of the Agreement that is held by a court of competent jurisdiction to be unenforceable shall be modified to the minimum extent necessary to make such provision enforceable and to best preserve the parties’ intent, provided that if such modification would materially alter the effect of the provision, then the provision shall be considered void, and the remaining provisions of the Agreement shall be enforceable in accordance with their terms. Pursuant to any applicable laws, rules, or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by means other than electronic means. The parties shall be and act as independent contractors.