Effective April 2009
This Tatto Media Publisher Agreement ("Agreement"), entered into by and between Tatto, Inc., a Delaware State corporation ("Tatto Media"), and you ("Publisher" or "you"), governs your use of, and participation in, the Perform Network owned and operated by Tatto Media (the "Tatto Media Network"). Please be advised that this Agreement is subject to change at any time, in Tatto Media's sole discretion, and such revised Agreement shall be posted on the Tatto Media website located at www.tattomedia.com (the "Site"). Your continued use of the Tatto Media Network after such revision and posting on the Site constitutes your consent to such changes.
1. Registration/Acceptance. To begin the enrollment process, you must submit a complete and accurate Publisher registration form ("Application"). Tatto Media will evaluate your Application and promptly notify you of your Application acceptance or rejection. Tatto Media reserves the right to reject your Application for any reason at any time, in its sole discretion. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Tatto Media of same to reflect such changes in your Publisher profile. The information and services provided through the Tatto Media Network are proprietary in nature and, by enrolling, Publisher acknowledges that Publisher is not a competitor of Tatto Media and agrees not to share this information with any competitors of Tatto Media.
By submitting an Application, clicking "I Agree" below or otherwise accessing, using or participating in the Tatto Media Network, you hereby represent to Tatto Media that you are at least eighteen (18) years of age and otherwise capable of entering into and performing legal agreements and agree to follow and be bound by this Agreement. If you are submitting an Application on behalf of a business, you represent that you have the authority to bind that business, and your acceptance of this Agreement will be treated as acceptance by that business. In such an event, any reference to "Publisher" or "you" shall refer jointly to you, the Publisher, as well as the applicable underlying business.
2. Account. Upon Tatto Media's acceptance of your Application, Publisher must register on the Site and create a unique, password-protected account ("Account"). Publisher will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Publisher shall remain fully and solely responsibility for any and all actions taken under Publisher's Account, whether authorized by Publisher or not. Publisher must immediately notify Tatto Media of any unauthorized use of Publisher's Account. Publisher is responsible for keeping its Account information current, complete and accurate, and Publisher acknowledges and agrees that Tatto Media will have no responsibility or liability, directly or indirectly, for failure to deliver notices or payments as a result of inaccurate Publisher Account information.
4. Ads. Tatto Media will post advertising materials provided by Tatto Media's advertising clients ("Advertisers") including, without limitation, banners, buttons, text-links, pop-ups, pop-unders, graphic files and other similar online media (collectively, "Ads"), directly to the Publisher Websites via the Feed. Tatto Media may change or revise the Ads in the Feed at any time, in its sole discretion. Publisher may not alter, modify or otherwise change the Ads in any manner, whatsoever. Publisher may only use Ads supplied by Tatto Media through the Feed in connection with marketing the applicable Ad Campaign. Use, or the attempted use, of any other marketing materials in connection with any Ad Campaign without obtaining Tatto Media's prior written approval in each instance will result in the immediate termination of this Agreement, without notice. As between Publisher and Tatto Media, Tatto Media retains full and sole ownership of all Ads and other information supplied to Publisher from time to time in connection with this Agreement. Tatto Media may terminate Publisher's right to use the Ads at any time, in its sole discretion, and Publisher must immediately comply with this decision.
5. Placement. Publisher agrees that Tatto Media may, in its sole discretion, direct the placement of Ads. Subject to the terms and conditions of this Agreement, the applicable Ad Campaign and all applicable laws, rules and regulations, Publisher may display the Ads on those websites owned, operated or controlled by Publisher or any of its Sub-Publishers (as defined below) ("Publisher Websites"). Notwithstanding the foregoing, Publisher must comply, immediately, with any and all requests by Tatto Media to modify, alter or otherwise change the positioning, placement and/or other editorial decisions related to the Ads. Publisher must immediately remove Ads upon receiving notice from Tatto Media or upon the termination or expiration of this Agreement or any applicable Ad Campaign.
6. Restrictions on Use. Publisher may not allow the Ads to be placed on any non-Publisher Websites without the prior express written consent of Tatto Media. Publisher must place or use the Ads only with the intention of delivering valid Actions. Publisher may not, nor knowingly permit any person to, inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person accessing the Ads.
7. Ad Codes. Unless otherwise stated in writing by Tatto Media, each Ad made available to Publisher in connection with any Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Tatto Media and embedded in all such Ads ("Ad Codes"). Publisher will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Ad Codes or other technology and/or methodology required or made available by Tatto Media to be used in connection with the Ads.
8. Term/Termination. The term of this Agreement will begin upon Tatto Media's written acceptance of Publisher's submitted Application (with e-mail sufficing) and will end when terminated by either party as set forth herein. Publisher may terminate this Agreement at any time upon three (3) days' prior written notice to Tatto Media. Tatto Media may terminate Publisher's participation in the Tatto Media Network, any Ad Campaign and/or this Agreement immediately upon notice at any time, in Tatto Media's sole discretion. Upon termination of this Agreement for any reason: (a) Publisher shall immediately cease to use and remove from the Publisher Websites any and all Ads and/or other materials made available to Publisher in connection with Publisher's participation in the Tatto Media Network; (b) any and all licenses and rights granted to Publisher in connection with this Agreement shall immediately cease and terminate; and (c) any and all Confidential Information (as defined hereinbelow), Ads or other proprietary information of Tatto Media that is in Publisher's possession or control must be immediately returned or destroyed. If requested, Publisher will certify in a writing signed by Publisher or an authorized officer of Publisher that all such confidential and/or proprietary information has been returned or destroyed.
(a) General. Tatto Media shall pay Fees according to the applicable Campaign Terms. Tatto Media will not pay any Fees to Publisher: (i) unless Tatto Media has documentation to support such Fees within the Tatto Media database and Data (as defined hereinbelow); (ii) for Actions that occur before Publisher is accepted into the Tatto Media Network, or after termination of this Agreement or any applicable Ad Campaign; and/or (iii) for which Tatto Media has not received the corresponding payment from the applicable Advertiser on whose behalf the subject Action was generated. Tatto Media reserves the right to withhold and/or cancel Fee payments due and owing to Publisher at any time, in its sole discretion, when Tatto Media believes that Publisher is in breach of any term of this Agreement. Publisher shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Publisher's participation in the Tatto Media Network. Tatto Media may require Publisher to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Fee payments. Without limiting the foregoing, Publisher agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Tatto Media and/or any of its Advertisers pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
(b) Schedule. Tatto Media shall pay Fees based on the Actions recorded by the Ad Codes approximately thirty (30) days after the last day of a given calendar month for Fees earned during the prior month. All determinations made by Tatto Media in connection with the Ad Codes, Actions and any associated Fees due to Publisher shall be final and binding on Publisher.
(c) Data. Tatto Media, in its sole discretion, may withhold any and all payments due and owing to Publisher until such time as the applicable Advertiser has paid Tatto Media for the associated Ad Campaign. Please be advised that Tatto Media's services do not involve investigating or resolving any claim or dispute involving Publisher and any Advertiser or other third party. Tatto Media shall compile, calculate and post on the Site data derived from the Ad Codes, and otherwise, that Tatto Media has used to determine Fees due to Publisher (collectively, "Data"). Any questions or disputes regarding the Data must be submitted in writing to Tatto Media within five (5) business days of the date that the Data is posted on the Site (or otherwise made available to Publisher), or the information contained therein will be deemed accurate and accepted by Publisher. Tatto Media will investigate and resolve any Data-related questions or disputes in its sole discretion. If, due to any impairment of the Ad Codes or any other reason, Tatto Media is unable or fails to provide Publisher with accurate and/or complete Data, Tatto Media shall calculate Actions ("Projected Actions"), based upon: (i) Publisher's average monthly Actions recorded by Tatto Media for the applicable Ad Campaign, prorated for any shorter or longer period of time, where Data is available to calculate a monthly average; or (ii) such amount that Tatto Media reasonably determines is due and owing, in its sole discretion, where the Data needed to calculate Publisher's average monthly Actions is unavailable.
10. Sub-Publishers. For purposes of this Agreement, any business partners or associates of Publisher that participate in or perform any activities for Publisher in connection with Publisher's participation in the Tatto Media Network shall be deemed to be "Sub-Publishers." Any and all Sub-Publishers must be pre-approved by Tatto Media. Tatto Media reserves the right to withhold or refuse approval of any Sub-Publisher for any reason whatsoever, and Tatto Media may revoke its approval of a Sub-Publisher at any time. All Sub-Publishers must meet the same criteria for approval and must comply with the same terms and conditions as required of Publisher under this Agreement. Publisher is responsible for any and all acts and/or omissions of its Sub-Publishers. Publisher shall fully and unconditionally indemnify and hold Tatto Media harmless from and against any and all acts and/or omissions of any Sub-Publisher.
12. Disclaimer/Limitation of Liability. THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TATTO MEDIA HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, TATTO MEDIA IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN TATTO MEDIA AND PUBLISHER. THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. TATTO MEDIA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE TATTO MEDIA NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM TATTO MEDIA THROUGH THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS IS EXPRESSLY DISCLAIMED. PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE TATTO MEDIA NETWORK AND ACCESS AND/OR USE OF SITE AND ADS IS SOLELY AT PUBLISHER'S OWN DISCRETION AND AT PUBLISHER'S OWN RISK. PUBLISHER IS ALSO SOLELY RESPONSIBLE FOR ITS USE, OR ALLEGED USE, OF THE TATTO MEDIA NETWORK, FEEDS, SITE, DATA, AD CODES AND ADS. UNDER NO CIRCUMSTANCES SHALL TATTO MEDIA BE LIABLE TO PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM PUBLISHER'S PARTICIPATION IN THE TATTO MEDIA NETWORK. TATTO MEDIA'S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY TATTO MEDIA TO PUBLISHER DURING THE PRECEDING THREE (3) MONTHS.
13. Proprietary Rights. The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Site, Tatto Media Network, Ads, Ad Codes, Data and Feeds made available by Tatto Media are protected under applicable copyright, trademark and other proprietary and intellectual property rights. The usage, copying, redistribution and/or publication by Publisher of any part of the Site, Tatto Media Network, Ads, Ad Codes, Data and Feeds made available by Tatto Media, other than as contemplated hereunder, is strictly prohibited. Publisher does not acquire any ownership rights to the Site, Tatto Media Network, Ads, Ad Codes, Data and Feeds made available by Tatto Media. The availability of the Site, Network, Ads, Ad Codes, Data and Feeds made available by Tatto Media does not constitute a waiver of any rights related thereto.
15. Consumer Data. As a Publisher, you will permit and enable the placement of Tatto Media Ad Codes, and other Ad tags and cookies on the Publisher Websites, and will make the applicable disclosures associated with same in your Publisher Privacy Policies. You acknowledge and agree that Tatto Media and its Advertisers will collect, use and share general, non-personally identifiable data (including, without limitation, user IP addresses and browser types, referring pages, user interaction information and Ad identification information) in connection with Ads displayed on Publisher Websites ("General Data"). You represent and warrant that You have the rights and permissions necessary to grant, and do hereby grant, to Tatto Media and its Advertisers an irrevocable, perpetual, non-exclusive, transferable and sublicensable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute any and all General Data generated hereunder for any purpose, commercial, advertising or otherwise.
16. Confidentiality. For purposes of this Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of this Agreement; (c) any information marked or designated by the Disclosing Party as confidential; and (d) with respect to Tatto Media, any General Data. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (A) is generally available to or known to the public through no wrongful act of the receiving party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of the confidentiality provisions contained herein may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond. This Section 16 shall survive any termination of this Agreement for a period of five (5) years.
17. Non-Circumvention. Publisher recognizes that Tatto Media has proprietary relationships with the Affiliates (as that term is defined in the Site Terms and Conditions), publishers, Advertisers and other third-parties that participate in the Tatto Media Network. Publisher agrees not to circumvent Tatto Media's relationship with such Affiliates, publishers, Advertisers and third-parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by publishers in the Tatto Media Network for any third party Affiliate, publisher, Advertiser or other third party that is known, or should reasonably be known, by Publisher to participate in the Tatto Media Network, during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Affiliate, publisher, Advertiser or third-party already obtained such services from Publisher prior to the date of this Agreement, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 17 will not be adequate and that Tatto Media shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Publisher in the amount equal to one hundred percent (100%) of the fees paid to Publisher in violation of this Section 17 for the prior six (6) month period; and/or (c) any and all other remedies available to Tatto Media at law or in equity.
18. Indemnification. Publisher agrees to indemnify, defend and hold harmless Tatto Media, its Advertisers and each of their respective parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to: (a) Publisher's breach of this Agreement and/or any representation or warranty contained herein; (b) the Publisher Websites and/or Publisher's marketing practices; (c) any non-Ad Campaign related content, goods or services offered, sold or otherwise made available by Publisher on and through the Publisher Websites or otherwise; (d) any claim that Tatto Media is obligated to pay any taxes in connection with Publisher's participation in the Tatto Media Network; (e) any act or omission, whatsoever, of any Sub-Publisher; and/or (f) Publisher's participation in the Tatto Media Network, in any manner whatsoever. Tatto Media reserves the right to participate in the defense at its sole expense. Publisher may not settle any claim without the prior written approval of Tatto Media. Publisher shall immediately notify Tatto Media if Publisher receives notice of any complaints, inquiries or investigations related to the Publisher Websites, any Sub-Publisher or any other violations in connection with Publisher's, or any Sub-Publisher's, business whether or not Publisher is obligated to indemnify Tatto Media for such claim hereunder.
19. Force Majeure. Neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
20. Miscellaneous. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York, without giving effect to principles of conflicts of law and with the same force and effect as if fully executed and performed therein. Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in New York, New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Tatto Media and its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that Tatto Media incurs in seeking such relief. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Publisher agrees that any unauthorized and/or unlawful use of the Tatto Media Network would result in irreparable injury to Tatto Media for which monetary damages would be inadequate. In such event, Tatto Media shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Publisher without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Tatto Media. Tatto Media and Publisher are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Tatto Media's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not an Publisher, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Tatto Media Network, is a violation of both criminal and civil law and Tatto Media will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and Tatto Media's successors and assigns. Publisher is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement.
21. Electronic Signatures. Publisher acknowledges and agrees that by clicking on the button labeled "I Agree" or such similar links as may be designated by Tatto Media to accept this Agreement, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that Publisher's electronic submissions constitute Publisher's agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") 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 INITIATED OR COMPLETED THROUGH THE SERVICES OFFERED BY TATTO MEDIA. 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 other than electronic means.
Questions about any of our policies or agreements? Send us an email at firstname.lastname@example.org.