ExoticAds Terms of Service

Last Modified: 2015-10-21

Introduction

In order to participate in the ExoticAds Advertising Program (the "Program"), you must agree to all of the terms and conditions of these Terms of Service (these "Terms" or the "Agreement").  Please read the following terms and conditions carefully, as they form the agreement between you, the "Advertiser" or "Publisher," and the operators of the Program.  THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE PROGRAM.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT COMPLETE THE ENROLLMENT FORM TO BECOME A MEMBER OF THE PROGRAM.  BY COMPLETING THE ENROLLMENT FORM TO BECOME A REGISTERED ADVERTISER OR PUBLISHER, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.

Becoming a Member

In order to use the Program, you will be required to create an account with the Program.  To create an account you will be required to provide certain information including your valid email address and a password.

The Service

The operators of the Program have designed a service (the "Service") that assists Program members, who (i) are looking for websites on which to advertise, in placing such advertisements on advertising space available through the Program as an "Advertiser"; and/or (ii) desire to make available space on their website for placement of third-party advertisements as a "Publisher."  Advertisers are able to review the available advertising space (each an "Ad Zone") and purchase available advertising space on the available websites.  Once an Advertiser purchases placement on an Ad Zone, if the ad copy (the "Ad") provided by that Advertiser complies with the terms of this Agreement, the Ad will be placed in the Ad Zone purchased subject to its purchase terms. Publishers are able to designate Ad Zones on their approved websites for placement of Ads provided by Advertisers. If an Ad is successfully matched for placement on a Publisher’s Ad Zone, that Publisher will receive a portion of the purchase price paid by the Advertiser whose ad is placed in the Ad Zone.

Submitting Ad Zones

In order to enable Ad Zones on your website for displaying Ads from the Program, your website must be submitted and approved. If your website does not conform in any way with these Terms or is otherwise deemed unacceptable by the Program, your website will not be enabled for displaying Ads from the Program. All determinations as to whether your website is approved for Ads shall be made by the Program in its sole discretion. The Program reserves the right to disallow your website for any reason or no reason at all. The Program reserves the right to change any determination of approval of your website at any time. Past approval of your website is no guaranty of future approval for placement of Ads.

Placing Ads

Before you will be able to purchase placement on any Ad Zone, you will be required to deposit funds with Program as then currently permitted by Program.  Any funds deposited with Program will not accrue any interest at any time.   Once all funds deposited in your account have been exhausted or you attempt to make a purchase larger than your balance with the Program you will be required to deposit additional funds before you will be able to purchase placement on any Ad Zone(s).  By depositing funds in your account, you thereby acknowledge your understanding and agreement that you are responsible for all purchases placed through your account.

Account Security

You agree to be responsible for all purchases placed through the Program and all changes to your account, including without limitation any modifications of the registered Ad Zones on your website.  For such reason you agree to maintain the password to your account with the Program confidential and not to use the same password to access the Service that you use for any other website or account.  You further agree to ensure that you have properly logged out of the Program’s website when you are finished using the Service and/or when leaving and/or allowing someone else to use your internet-accessible device.  You agree that you will immediately notify the Program by email in the event that you believe that someone other than you may have gained access to your account.  Until such time as you so notify the Program, you agree to be solely responsible for any and all activity on your account, including purchases placed through your account.

Ad Requirements

By submitting an Ad through the Program you represent and warrant that:

  1. You are the owner of the images and text in such Ad, or you have obtained written permission from the owner of such images and text to use and display such images and text, as used in your Ad and as you are requesting they be displayed in an Ad Zone; and
  2. All images and text in such Ad comply with all applicable law, including, without limitation, 18 USC § 2257, and that such Ad is not in anyway abusive, harassing, obscene, fraudulent, offensive, harmful, inaccurate, deceptive, or defamatory; and
  3. All websites to which such Ad links or refers traffic is compliant in all respects with applicable law.

The foregoing requirements are non-exclusive, and the Program may, at any time, prohibit any type of Ad that the Program determines, in its sole and absolute discretion, to be inappropriate. The Program reserves the right to refuse any Ad for any reason or no reason at all. Past approval of an Ad is no guaranty of future approval for displaying in any Ad Zone.

Website Requirements

By registering an Ad Zone on your website through the Program, you represent and warrant that:

  1. You are the owner of all images and other content appearing on the submitted website where such Ad Zones appear, or you have obtained written permission from the owner of such images or other content to use and display such images and other content, as used and displayed on the submitted website; and
  2. All images and other content appearing on the submitted website where such Ad Zone appears comply with all applicable law, including, without limitation, 18 USC § 2257, and that such images and other content are not in any way abusive, harassing, obscene, fraudulent, offensive, harmful, inaccurate, deceptive, or defamatory.

You acknowledge and agree that the following material shall be prohibited on any website where Ad Zones may be registered, including on pages other than where such Ad Zones may appear:

  1. Viruses or malware of any kind
  2. Content that appears to be created or posted without the depicted individual’s consent
  3. Content that depicts individuals who appear to be under the age of 18
  4. Any content protected by third-party copyrights, trademarks, or any other intellectual property right
  5. Any promotion of illegal activity

The foregoing requirements are non-exclusive, and the Program may, at any time, prohibit any website from displaying Ads that the Program determines, in its sole and absolute discretion, to be inappropriate. The Program reserves the right to refuse any website for any reason or no reason at all. Past approval of your website is no guaranty of future approval for placement of Ads.

No Warranties and No Responsibility

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE AND EXCLUSIVE RISK.  THE SERVICE IS PROVIDED ON AN "AS IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS.  THE PROGRAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  THE PROGRAM MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE PROGRAM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICE WILL BE CORRECTED.

The Program does not and cannot make any representation or warranty as to the accuracy, completeness or currency of any information or content provided on or made available through the Service, including but not limited to Ads.   As written above, Program does not control or verify, or seek to control or verify, any information or content provided by users of the Service.  You therefore acknowledge and agree that Program is not, and will not at any time in the future, have any legal liability for such information or content.  The Program has no control over the effectiveness, quality, safety or legality of any Ad, or any good or service described in any Ad.  Any representation or statement made in any Ad is solely the representation or statement of the user who placed such Ad and shall not in any way be deemed a representation or statement by Program.

Breaches of this Agreement

Notwithstanding anything herein to the contrary, although users of the Service are required to make certain representations to the Program in order to use the Service, it is possible that such users may still post content or use the Service in ways which breach these representations to the Program.  The Program reserves the right, but does not undertake any duty, to terminate the account of any user regarding whom it receives documentation demonstrating, to the satisfaction of the Program, that such user has used his/her account in breach of this Agreement.  The Program reserves the right, but has no duty, to terminate or suspend the account of any user who the Program believes may be using the Service in violation of this Agreement and/or law.

Limitation of Liability

To the fullest extent possible, the Program, its affiliates, directors, employees and related entities exclude all liability including but not limited to all liability, whether in tort or contract or otherwise, for any claim, damages, any actual, special, direct, indirect, exemplary, special or consequential loss or damage, costs, expenses, claims in respect of economic loss, loss of profits, any loss of or damage to data, property or goodwill or death or injury to any person, of whatever nature and however or wherever sustained, including by negligence arising out of or in connection with your or any person’s use of the Service, even if advised of the possibility of such damages.

To the fullest extent possible, the Program, its affiliates, directors, employees and related entities exclude all liability including but not limited to all liability, whether in tort or contract or otherwise, for any claim, damages, any actual, special, direct, indirect, exemplary, special or consequential loss or damage, costs, expenses, claims in respect of economic loss, loss of profits, any loss of or damage to data, property or goodwill or death or injury to any person, of whatever nature and however or wherever sustained, including by negligence arising out of or in connection with your or any person’s use of the Service, even if advised of the possibility of such damages.

To the fullest extent possible, the Program excludes all liability relating to any errors, omissions and offensive, harmful, inaccurate, deceptive or defamatory content contained or implied in any Ad and/or any advertised good or service.

Digital Millennium Copyright Act

NOTICE OF CLAIMED INFRINGEMENT

Program respects the intellectual property of others, and its operators ask users of the Service to do the same.  The Program observes and complies with the United States’ Digital Millennium Copyright Act (the "DMCA").  If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated through use of the Program, please provide the Program’s Designated Copyright Agent a "Notice of Claimed Infringement" including at least the following information:

You may send your Notice of Claimed Infringement to:

Lawrence G. Walters, Esq.
195 W. Pine Avenue
Longwood, FL 32750
Fax: (407) 774-6151
Email: Notice[at]DMCANotice[dot]com

Please DO NOT send any other inquires or information to the Program’s Designated Copyright Agent.  For all other inquiries please email the Program’s support team at the following email address:  support@exoticads.com

NOTICE AND TAKEDOWN PROCEDURES

The Program hereby implements, and you consent to, the following "notice and takedown" procedure upon receipt of any Notification of Claimed Infringement.  The Program reserves the right at any time to disable access to or remove any material or activity accessible on or from the Service or any Ad claimed to be infringing, or based on facts or circumstances from which infringing activity is apparent.  It is the firm policy of the Program to terminate the account of repeat copyright infringers, when appropriate, and the Program will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in DMCA.

It is important to understand that knowingly making a material misrepresentation concerning alleged copyright infringement may result in significant civil penalties including damages, costs and attorneys’ fees incurred by the alleged infringer or the Program member.

DMCA COUNTER-NOTIFICATION PROCEDURE

If the recipient (the "Recipient") of a Notice of Claimed Infringement ("Notice") feels that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in response to a Notice as outlined above, the Recipient is permitted to submit a counter-notification pursuant to § 512(g)(2) and (3) of the DMCA.  A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material (the "Material") pursuant to a Notice.  The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations that may cause any claims to be brought against the Program relating to the Material.

To submit a counter-notification, please provide the Program’s Designated Copyright agent the following information:

  1. A specific description of the material that was removed or disabled pursuant to the Notice.
  2. A description of where the material was located within the Site before such material was removed and/or disabled. Please provide the specific URL if possible.
  3. A statement reflecting the Recipient’s belief that the removal or disabling of the Material was done so erroneously. For convenience, the following format may be used:

"I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled."

  1. The Recipient’s physical address, telephone number, and email address. Written notification containing the above information must be signed and sent to:

Lawrence G. Walters 
195 W. Pine Ave. 
Longwood, FL 32750-4104 
Fax: (407) 774-6151 
notice@dmcanotice.com

Please DO NOT send any other information or material to the Program’s Designated Copyright Agent.  For all other inquiries please email the Program’s support team at the following email address:  support@exoticads.com

Indemnification

You agree to defend, indemnify, defend, and hold the Program and its affiliates, successors, assigns, officers, employees, agents, directors, shareholders and attorneys, harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach by you of this Agreement; (b) your use (or misuse) of the Service; (c) all conduct and activities occurring using your account; (d) any item or service sold or advertised in connection with your Ad and/or websites owned, controlled, used and/or referred by you (collectively, your "Content"); (e) any defamatory, libelous or illegal material(s) contained within your Content or your information and data; (f) any claim or contention that any of your Content and/or your goods or services contain any information, data or other materials which infringes any third party’s patent, copyright, trademark, or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) third-party access or use of the Ads; (h) any claim related to your website(s); (i) any costs incurred on your behalf as a result of your failure to comply with local or Federal United States Law; and/or (j) any violation of this Agreement.  You shall not settle any such claim or liability without the prior written consent of Program, which consent shall not be unreasonably withheld.  The Program reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so, and the Program is permitted by this Agreement to later seek indemnification from you.  You understand that Program will take any and all measures to protect itself from any legal or civil litigation including, but not limited to, removing any of your Content from its servers and/or canceling your account, in Program’s sole discretion.  You also understand that Program will charge, on an hourly basis, for any and all time spent responding to any third-party complaints, disputes, copyright claims or actions involving you or your Content.

Privacy and Use of Information

Except as more fully set forth in our Privacy Policy, your personal information will not be disclosed to any third party.

Arbitration

All Disputes (including any dispute relating to the arbitrability of this Agreement or any provision of this Agreement or any other dispute relating to arbitration) must be submitted to arbitration before and in accordance with the arbitration rules of the American Arbitration Association in accordance with its commercial arbitration rules. The term "Dispute" means any controversy or claim arising out of or relating to the Program or the Services or this Agreement, or any breach thereof, including any claim that this Agreement, or any part of this Agreement is invalid, illegal or otherwise voidable or void.

The provisions of this Arbitration Section must be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction or arbitrator determines that any such provisions are unlawful in any way, such court or arbitrator is authorized to modify or interpret such provisions to the minimum extent necessary to have them comply with the law. Notwithstanding any provision of this Agreement relating to under which state’s laws this Agreement is to be governed by and construed under, all issues relating to arbitrability or the enforcement of the Agreement to arbitrate contained herein are to be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the federal common law of arbitration.

Judgment upon an arbitration award may be entered in any court having competent jurisdiction and will be binding, final and non-appealable. You and the Program hereby waive to the fullest extent permitted by law, any right to or claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between them, each shall be limited to the recovery of any actual damages sustained by it.

This arbitration provision is self-executing and will remain in full force and effect after the expiration or termination of this Agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear.

Arbitration takes place in Orange County, California, exclusively.

You and the Program hereby agree that no action (whether for arbitration, damages, injunctive, equitable or other relief, including rescission) will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, or any other Dispute, unless brought before the expiration of the earlier of one year from the occurrence of the facts giving rise to such claims or within 90 days from either the actual discovery of the facts giving rise to such claims or from the date on which the party should have, in the exercise of reasonable diligence, discovered such facts.

The obligation to arbitrate is not binding upon the Program with respect to claims relating to its trademarks, service marks, patents, copyrights, or other intellectual-property rights, or requests for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.

The prevailing party will be entitled to receive from the non-prevailing party its costs relating to the arbitration proceeding including but not limited to, the arbitrator's fees, attorneys' fees and costs, witness fees, transcription fees, etc. and sales and use taxes thereon, if any.

You and the Program each acknowledges and agrees that it is the intent of the parties that arbitration and litigation between the parties will be of the parties' individual claims, and that none of their respective claims may be arbitrated or litigated on a class-wide basis.

Jurisdiction and Costs

You hereby agree that all disputes arising out of this Agreement shall be governed by the laws of and governing Miami-Dade County, Florida, excluding its conflict of law provisions.  You and the Program hereby agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  You and the Program hereby submit to the exclusive jurisdiction of the state and federal courts in and for Miami-Dade County, Florida, for resolution of all disputes.  Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Miami-Dade County, Florida.

In the event either you or the Program commences any claims, suits, or formal legal action to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal.

Non-Transferable or Assignable

You agree and acknowledge that you are not permitted to assign this Agreement to any third party and any attempt to do so will be deemed and operate as your termination of this Agreement.

No Waiver

The Program’s failure to enforce any and all remedies shall not be construed as a waiver thereof.

Headings

Headings are used herein for ease of reference purposes and shall not be used in interpreting, construing and/or enforcing this Agreement.

Severability

The invalidity, illegality or unenforceability of any part of this Agreement or any of its terms, as determined by a court of competent jurisdiction, shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.

Entirety of Agreement

Except where expressly stated to the contrary herein, this Agreement constitutes the entire agreement and understanding between you and the Program, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their agreement with respect to the subject matter herein described.  This Agreement shall take precedence over any other documents that may conflict with this Agreement.

Binding Agreement

You and the Program acknowledge the legally binding nature of this Agreement.  By clicking any link, button, or other device provided to you in any part of the Program’s website interface, or by using any part of the Services in any manner, including without limitation the creation of a member account or the purchase of placement on an Ad Zone, you are acknowledging and affirmatively stating that you have read and understood the terms of this Agreement and that you agree to be bound by this Agreement.

Nothing more follows.