Clickbooth.com Advertiser Terms & Conditions
The following Terms and Conditions are entered into as of the “Effective Date” set forth below by and between Clickbooth.com,
LLC., owner and operator of Clickbooth network (“Clickbooth”), Guarantor, identified below, and you (“Advertiser,” “you,” “yours”), and shall
govern the placement and delivery of advertising as set forth in the Insertion Order ("IO") to which these Terms and Conditions are attached
(the IO, together with these Terms and Conditions, the "Agreement").
Clickbooth provides you, as Advertiser, with the ability to post Ads (as defined below) for distribution through the
Clickbooth Network, as defined herein, subject to your compliance with the terms and conditions of the Agreement. By enrolling as
an advertiser, Advertiser, its agents, representatives, employees and any other person acting on its behalf with respect to the use
of the Clickbooth Network, shall be bound by, and agrees to be bound by, the Agreement.
2. Clickbooth Network.
The Clickbooth Network is defined as various third party affiliates ("Affiliates") that may be authorized by
Clickbooth to post Ads on or through websites, newsletters and/or applications that they control. Affiliates are paid a commission
based on revenue generated from Advertiser‘s campaign(s). The Clickbooth Network can be accessed at www.Clickbooth.com.
3. Clickbooth Services/Ads.
As of the Effective Date, Advertiser agrees to accept and pay for, and Clickbooth agrees to provide,
the services identified and set forth in the Agreement ("Services"). Clickbooth‘s exclusive obligation is to distribute advertising
campaigns (“Campaigns”) consisting of advertisements provided by Advertiser within the Clickbooth Network, in accordance with
the Agreement. Advertiser will, at its sole cost and expense, create and deliver all advertisements to Clickbooth prior to publication
("Advertiser Provided Ad" and/or "Ad(s)"). The parties understand and agree that Advertiser is the sole owner of any and all
intellectual property rights associated with any Advertiser Provided Ads. Clickbooth does not guarantee that the Ads will be
available or displayed, will not be required to publish any Ad and may refuse or stop publication of any Ad at any time for any
reason in its sole discretion. Clickbooth‘s failure to reject or cancel any Ad shall not be construed as an acceptance of the Ad, nor
shall it negate other provisions of the Agreement, specifically with respect to liability. Clickbooth‘s policies, specifications and/or
recommendations with respect to Ads should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads
comply with applicable law. Clickbooth does not represent or warrant that the Ads, or such policies, specifications and/or
recommendations associated with the Ads, are legally compliant or appropriate. Clickbooth assumes no obligation and hereby
disclaims any liability for Advertiser‘s use of the Ads or Advertiser‘s reliance on any such policies, specifications and/or
recommendations. Advertiser should consult with its legal counsel and/or other professional advisors before utilizing any Ads or
acting on any policies, specifications and/or recommendations as provided by Clickbooth. Advertiser is solely responsible for the
content of the Ads. Clickbooth shall not be responsible for Advertiser‘s website(s) including, but not limited to, content,
maintenance of Advertiser‘s website(s), order entry, customer service, payment processing, shipping, cancellations or returns.
Advertiser warrants and represents that: (a) it has all right, title and interest in and to the Ads; (b) the use of the Ads by Clickbooth
and its Affiliates as contemplated and authorized hereunder will not infringe on any copyright, patent, trademark, trade secret or
other proprietary rights or right of publicity or privacy; and (c) all Ads are in compliance with all laws, regulations and ordinances
("Laws") of the United States and any other jurisdiction in which Advertiser conducts business.
a. Distribution of Ads.
Positioning of the Ads within the Clickbooth Network is at the sole discretion of Clickbooth and its
Affiliates. Clickbooth does not guarantee that your Ads will be available through any specific part of the Clickbooth
Network, when your Ads will run and/or the placement and positioning of your Ads.
If the "Exclusive" option has been selected on an IO, then Clickbooth shall be the exclusive online
distribution source for that offer, and Advertiser shall not duplicate the same or similar offer for any other affiliate,
publisher, or network without Clickbooth‘s prior written consent. In the event of a breach of this provision by Advertiser,
Clickbooth shall be entitled to, in addition to all other rights and remedies that Clickbooth may have at law or in equity,
an injunction (without the requirement to post a bond) enjoining and restraining Advertiser and/or all other persons
involved therewith from continuing such breach for each applicable "Exclusive" offer. Advertiser acknowledges that any
breach by Advertiser of this provision will result in irreparable injury to Clickbooth for which money damages may not
adequately compensate Clickbooth.
c. Cost Per Click Campaigns.
Subject to Clickbooth’s approval, and acceptance by Clickbooth of Advertiser’s
participation in on its network, from time to time Advertiser may choose to have its Campaigns distributed through
Clickbooth’s cost per click affiliate platform. Ads in these Campaigns will be generally displayed across the Network and
will be available to Affiliates based on bids submitted for each Campaign by the Advertiser on a cost per click basis. For
example purposes only, and without limitation to other examples that may apply, if Advertiser bids on the category
"home security," when an end user clicks on a home security link on a participating publisher website or clicks on home
security creative in an email, the user may be redirected to Advertiser's website. Ads will be as specified by Advertiser,
including the click-through URL provided by Advertiser. Advertiser may control the length of each Campaign through the
ability to stop and re-start Campaigns. All requested URL links, category choices, and bids are subject to Clickbooth’s
approval. Clickbooth reserves the right to reject, cancel or remove any Ad, URL link, category selection(s), terms,
descriptions and bids at any time for any reason whatsoever and Clickbooth, its employees, consultants and other
agents shall have no liability for such decisions. Clickbooth does not guarantee that the Ad will be available or displayed
and Advertiser understands that Clickbooth reserves the right to not place Ad.
i. Representations and Warranties of Advertiser.
Advertiser represents and warrants that it shall access the
Clickbooth network solely and exclusively to manage its account with Clickboth and shall not share, transfer or
assign its access information to any third party. Advertiser shall not use any automated or unauthorized
means to access its account and shall not share, disseminate or monitor the Clickbooth network platform or
service for any purpose not explicitly granted in this Agreement.
4. Terms of Payment.
Clickbooth will submit an invoice to Advertiser for fees and charges associated with the Advertiser‘s
applicable offers in accordance with the payment model outlined below, and the applicable compensable events (each, an
"Action"). Invoicing and payments are governed by the credit decision issued to Advertiser by Clickbooth. Payments for invoices
will be overdue if unpaid after the due date listed on the invoice. Overdue invoices will accrue interest at the statutory interest rates
then in effect. Payments are subject to any and all applicable taxes and shall be paid in accordance with the payment method selected on the IO.
5. Payment Model and Reporting.
If Advertiser has elected to enroll in the Cost-Per-Action ("CPA") or Cost-Per-Lead (‘CPL")
program payment model defined as follows: Advertiser shall pay Clickbooth the designated CPA or CPL fee, as stated on the IO,
for each lead or sale delivered by Clickbooth and its Affiliates. The total fees will be based on the number of leads or sales
received from all of Advertiser‘s Ads, multiplied by the applicable CPA/CPL rate. Advertiser shall provide Clickbooth within five (5)
days after the end of the previous traffic period, the total number of leads or sales generated by Clickbooth and its Affiliates in the
previous traffic period. Notwithstanding the foregoing, upon Clickbooth‘s reasonable request Advertiser shall provide Clickbooth
with the total number of leads or sales for the previous traffic period within forty-eight (48) hours of the request. Advertiser
understands and agrees that Clickbooth shall invoice Advertiser using the higher of the numbers tracked by Clickbooth or tracked
by Advertiser, and Advertiser agrees to pay for all amounts as invoiced. Leads or sales are defined as Internet users interested in
your Ad or offer, who have clicked-thru to your landing page or website, and have signed up for, or purchased, as applicable, your
service or product as determined by the firing of the pixel. If Advertiser has elected to enroll in the cb:CPC Cost-Per-Click (“CPC”)
program, payment model is defined as follows: Advertiser shall pay Clickbooth an amount solely based on the number of clicks
and redirects multiplied by the amount Advertiser bid to pay for each click or redirect and not Advertiser's ability to convert clicks or
redirects to sales, registrations or other user actions. When Advertiser is the winning bidder for the display on the Network of
Advertiser's Ad, the winning CPC bid price may be below Advertiser's maximum CPC bid price, and shall not exceed Advertiser's
maximum CPC bid price, unless otherwise approved by Advertiser. Advertiser understands and agrees that Advertiser shall pay
Clickbooth using the higher of the numbers tracked by Clickbooth or tracked by Advertiser, and Advertiser agrees to pay for all
amounts as invoiced.
6. Traffic Level Adjustments.
If, in Clickbooth‘s sole determination, the projected fees payable by Advertiser for any traffic period
during the term of an IO are targeted to exceed the credit decision previously provided to Advertiser, then Clickbooth may, in its
sole discretion, take any one or more of the following actions at any time (a) require a deposit or increase in deposit; (b) increase
the frequency of invoices to daily, weekly or bi-weekly, as applicable: (c) require that Advertiser secure any current and/or future
payment obligations through the issuance of promissory notes, establishment of joint accounts and/or collateralization of
receivables, real property and/or other assets; (d) suspend the placement of Ads in the Network until the payment terms have
been revised to Clickbooth‘s satisfaction; (e) cap the number of Actions generated by the Ad.
7. Refund Policy.
All refunds if any are at the sole and absolute discretion of Clickbooth and are subject to an administrative
handling fee of an amount not to exceed $500. Any funds still left on deposit over one year after Advertiser has terminated activity
on the Clickbooth network shall be forfeited to Clickbooth.
8. Claims or Disputes.
Advertiser shall submit any and all claims and disputes in writing to Clickbooth within ten (10) days after
month‘s end or seven (7) days after the invoice date, whichever is earlier, time being of the essence. Claims and disputes not
timely submitted to Clickbooth, in accordance with this provision, are waived and all charges are final.
9. Failure to Make Payment.
The failure by Advertiser to make timely payment shall constitute material breach. Advertiser is
responsible for all reasonable expenses (including, but not limited to, attorneys‘ fees and costs) incurred by Clickbooth in collecting
such amounts due plus interest.
10. Tracking System.
You agree that you will not alter the pixel or remove or alter the location of the pixel or other tracking method
deployed by Clickbooth ("Pixel") to track leads. If you disrupt, interfere, or disable the tracking system, you will be obligated to pay
Clickbooth for all Actions, based upon the historical earnings per click ("EPC"), to have been generated during the period of
disruption. The historical EPC is determined by dividing the total earnings by the number of clicks generated by a campaign during
the most recent uninterrupted traffic period. Advertiser shall place Clickbooth‘s Pixel on a unique confirmation page that does not
contain the pixel or tracking method of any third party. If you place Clickbooth‘s Pixel on the same page as a third party‘s pixel or
tracking method, you will be obligated to pay Clickbooth based upon each firing of the Clickbooth Pixel (based upon Clickbooth‘s
tracking logs) regardless of any payment made to any third party for the subject action in reliance on any other pixel and/or
tracking method appearing on the same page.
Advertiser acknowledges and agrees that Clickbooth shall not be liable for any instances of fraud on the part of end-user
consumers and Advertiser agrees to pay Clickbooth in full for all services performed under the Agreement regardless of consumer
fraud. Advertiser shall not be liable for Actions that are the result of Affiliate fraud and are timely disputed in accordance with
Section 8 of this Agreement; however without definitive proof of fraud as determined by Clickbooth, Advertiser agrees to pay
Clickbooth in full for all services performed under the Agreement.
Advertiser recognizes that Clickbooth has proprietary relationships with Clickbooth Network Affiliates.
Advertiser agrees not to knowingly circumvent Clickbooth‘s relationship with such Affiliates, or otherwise obtain, directly or
indirectly, services similar to those performed by Clickbooth or such Affiliates hereunder, from any Affiliate that is known, or should
reasonably be known, by Advertiser to have such a relationship with Clickbooth. Advertiser shall not solicit the Affiliates of
Clickbooth, nor shall Advertiser use or attempt to use reverse engineering or tracing of Affiliate traffic as a means to solicit and/or
identify Clickbooth‘s Affiliates. Failure to comply with this Section may, at our discretion and without limiting or excluding other
remedies that may be available to Clickbooth (all such other remedies being expressly reserved), result in immediate termination
of the Agreement.
Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party
("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser.
Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know
same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a
reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for
any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the
term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes
generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation
of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or
agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser.
Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in
response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable
securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both
parties will stipulate to any orders necessary to protect said information from public disclosure.
For the term of the Agreement, Advertiser hereby grants to Clickbooth and Clickbooth‘s Affiliates and partners a non-
exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with the terms
of the Agreement; and (b) use all associated Advertiser intellectual property in connection therewith. Title to and ownership of all
intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third party
15. Acknowledgement of FTC and Florida Orders; Compliance.
You acknowledge that you have received, read, and agree to
comply with the "Stipulated Final Judgment and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order")
and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no
misrepresentations or material omissions in your advertisements, and understand and agree that engaging in acts or practices
prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all
monies received or owed. You may read the FTC Order and the Florida Order by clicking here:
Furthermore, you acknowledge
that you have reviewed and agree to comply with Clickbooth’s compliance policies applicable to your advertisements and activities
on the Clickbooth network. Clickbooth’s compliance policies can be found by clicking here:
16. Representations and Warranties.
EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS
THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES
GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE
AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DO NOT AND WILL NOT
VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN
EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF
EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.
17. Disclaimer of Warranties.
THE CLICKBOOTH NETWORK, SERVICES AND THE RESULTS GENERATED THERE FROM ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY
GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF
INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, CLICKBOOTH‘S SOLE OBLIGATION WILL BE TO RESTORE
SERVICE AS SOON AS PRACTICABLE. EXCEPT AS STATED HEREIN, CLICKBOOTH DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE.
18. Limitation of Liability.
Other than for gross negligence and willful misconduct, in no event will either party be liable for any
consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for
loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of the Agreement, even
if such party has been advised of the possibility of such damages.
Advertiser agrees to defend, indemnify and hold harmless Clickbooth and its Affiliates and their respectiv
directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including
reasonable attorneys‘ fees, even if incident to any appeals) (collectively "Losses") incurred as a result of any claim, judgment or
proceeding relating to or arising out of: (a) Advertiser‘s breach of the Agreement; (b) the content of the Ads and any and all claims
made therein; or (c) the products, services or content linked to from the Ads. Clickbooth agrees to defend, indemnify and hold
harmless Advertiser from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or
arising out of Clickbooth‘s breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought
from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of
which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification
obligations under this Section 19 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall
permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party
that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of
any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the
business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be
included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce
to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior
written consent of the Indemnified Party.
In addition to any other remedies that may be available to it, Clickbooth may immediately terminate this Agreement
or any applicable IO in the event of any breach by Advertiser of the Agreement. Either party may cancel this Agreement or an IO,
by giving five (5) business days prior written notice to the other party. Sections 1, 3-24, and any accrued but unpaid payment
obligations, shall survive termination of the Agreement. In the event of termination, Advertiser shall allow five (5) business days for
the campaigns to become inactive across the Clickbooth Network, and Advertiser will be responsible for the Actions that result
from Ads published during those five (5) days.
21. Scope of Relationship.
Each party is an independent contractor and not a partner, joint venturer or employee of the other.
Neither party shall have the right to bind the other or to incur any obligation on the other‘s behalf
The Agreement will be governed and construed in accordance with the laws of the State of Florida without giving
effect to conflict of laws principles. Advertiser and Clickbooth each: (a) hereby irrevocably submits to the exclusive jurisdiction in
the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of
Florida for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such
proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. If any provision of
the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without
being impaired or invalidated in any way. Any controversy or claim arising out of or relating to this Agreement shall be settled
through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration
Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by
either party in any state or federal court having competent jurisdiction thereof. If Advertiser brings or appeals any judicial action to
vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail,
Advertiser will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and
reasonable attorneys‘ fees) incurred by Clickbooth in defending such action. The failure of Clickbooth to exercise any rights
granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages.
The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not
be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
Advertiser may not assign the Agreement without the prior written consent of Clickbooth. The parties‘ rights and obligations will
bind and inure to the benefit of their respective successors, heirs, executors, joint administrators and permitted assigns. The
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument. The Agreement may be executed and delivered by electronic signature and/or
facsimile and the parties agree that such execution and delivery shall have the same force and effect as delivery of an original
document with original signatures.
23. Other Agreements.
The Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written
agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may
change, modify or amend the terms of the Agreement.