1. Acceptance of Terms
These Project Wonderful Advertiser Terms of Services ("TOS") are entered into by you, individually and on behalf of the applicable entity identified in your registration form, ("You" or "Your") and Project Wonderful Advertising Corporation ("Project Wonderful"), and govern your use of the advertising and other services provided by Project Wonderful ("Services") through the Project Wonderful website at http://www.projectwonderful.com ("Website"). Any access to, or other use of, the Website or Services, signifies Your acceptance and agreement, without limitation or qualification, to be bound by the TOS. Please note that the TOS may be updated from time to time without notice to you, so please check this web page on every visit to the Website.
THE SERVICES ARE SOLELY DIRECTED TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. IT IS YOUR RESPONSIBILITY TO DETERMINE IF YOUR USE OF THE SERVICES IS LAWFUL AND TO COMPLY WITH ALL APPLICABLE LAWS.
Please be aware that there may be certain areas on the Website that contain adult or mature content. You must be at least 18 years of age to access and view such areas.
IF YOU DO NOT AGREE WITH THE TOS, OR ARE NOT AUTHORIZED TO AGREE TO THE TOS, YOU MAY NOT USE THE SERVICES SO PLEASE DO NOT PROCEED WITH YOUR REGISTRATION.
The Services are provided subject to the TOS and on an "AS IS" and "AS AVAILABLE" basis. The Services for advertisers, including Project Wonderful's advertising placement services based on on-line auctions and time-based advertising, are generally described on the Website at http://www.projectwonderful.com/abouttheinfiniteauction.php. Project Wonderful reserves the right, at any time, to modify, suspend or discontinue, temporarily or permanently, the Services, or any part thereof, with or without notice. You agree that Project Wonderful shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Services. You are solely responsible for obtaining access to the Services, including any equipment or connectivity, and any associated third-party fees (such as Internet service provider or airtime charges or data communication charges), including fees associated with the upload, display, or delivery of advertisements. You agree that the Services may include certain administrative communications from Project Wonderful, and that these communications are considered part of Project Wonderful membership and You will not be able to opt out of receiving them.
3. Advertising Platform
Subject to Your compliance with the TOS, Project Wonderful grants you a personal, revocable, limited, non-transferable, non-exclusive license solely to access the Project Wonderful on-line advertising platform ("Advertising Platform"), as made available to member advertisers from time to time by Project Wonderful, for managing Your advertising content, information, and URLs ("Advertising") and for bidding on Project Wonderful's third party publisher ("Publisher") websites for the placement of Your Advertising on such websites. Publisher advertising space is made available by Publisher to You subject to the payment of all applicable fees and the other terms and conditions of this Agreement.
The Advertising Platform is provided on an "AS IS" and "AS AVAILABLE" basis and You acknowledge that Project Wonderful assumes no responsibility for among other things: (a) any auction results; (b) any information or search results about Publishers; (b) any statistical information about Your Advertising; (c) any delay in publishing, updating, or removing any Advertising; (d) any information about Your Advertising uptime (period of time during which Your Advertising was displayed on a Publisher website); or (e) the accuracy, delivery, or storage of any Advertising, communication or personalization settings.
4. Advertising Content
You must provide the Advertising in the format specified by Project Wonderful either via the Advertising Platform or other communications method approved by Project Wonderful. You hereby authorize and consent to all placements of Advertising through the Advertising Platform. You agree that all placements of Advertising shall conclusively be deemed to have been approved by You unless You produce contemporaneous documentary evidence showing that You disapproved of such placements in the manner specified by Project Wonderful. You acknowledge that some viewers may not see Your Advertising, due to ad-filtering software or other restrictions or issues.
You may cancel Your Advertising through Your account via the online cancellation functionality available through the Advertising Platform, if any, or with prior written notice to Project Wonderful. Project Wonderful's advertising network will cease serving any such cancelled Advertising shortly after confirmed receipt of such cancellation.
You consent to and allow Project Wonderful or the Publisher, in their sole discretion, to refuse, reject, remove or deactivate for any reason any Advertising that you have supplied at any time, including any part thereof. You agree that neither Project Wonderful nor any Publisher shall be liable to You or any third party for any refusal, rejection, removal or deactivation of any Advertising. You will be notified of Advertising placements via the Advertising Platform, email or other communications method approved by Project Wonderful.
You understand that the processing and transmission of your Advertising may involve: (a) transmissions over various third party networks; and (b) changes to the Advertising in order to conform or adapt to the technical requirements of connecting networks or devices.
5. Prohibited Advertising, Conduct, Uses
You shall not or permit or authorize any other party to:
7. Linked Content
You are solely responsible for all Advertising and all websites, web pages, products, services, advertising and other information that viewers are linked to via the Advertising ("Linked Content"). You hereby grant Project Wonderful permission to utilize an automated software program to retrieve and analyze websites associated with the Linked Content for ad quality and serving purposes.
You hereby represent and warrant that: (a) You own, or have enforceable and valid licenses to, all rights, including without limitation all copyright, trademark, patent, trade secret, publicity or other proprietary rights, in and to the Advertising and Linked Content; and (b) the Advertising and Linked Content do not breach, violate or infringe upon: (i) any third party rights, including without limitation any copyright, trademark, patent, trade secret, publicity or other proprietary rights; or (ii) any applicable laws, regulations or codes of conduct, including without limitation any applicable industry guidelines related to marketing or advertising content or activities. Any breach of the foregoing representations or warranties may result in immediate termination of the TOS or Your account, in Project Wonderful's sole discretion and without notice, and may subject You to damages.
You hereby grant to Project Wonderful and its Publishers a worldwide, full paid-up, royalty-free, non-exclusive license and right to host, cache, route, transmit, store, copy, modify, adapt, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of, the Advertising or Linked Content in relation to: (a) the provision of the Services; or (b) Project Wonderful's business as conducted from time to time.
Project Wonderful may, for any reason, with or without notice, discontinue Your Advertising (or any part thereof) or terminate Your account (including without limitation deletion of all account information and removal of access to the Advertising Platform), in which case You will be responsible for all Advertising Fees (as defined below) payable for any Advertising already run on the Project Wonderful network.
You may on ten days' written notice to Project Wonderful, including via the Advertising Platform or email, terminate Your account, in which case You will be responsible for all Advertising Fees payable for any ads run on the Project Wonderful network up to and including the effective date of account cancellation as determined by Project Wonderful.
Project Wonderful shall not be liable to you or any third party for any discontinuation or termination of Your Advertising or Your account or any access to the Services.
9. Project Wonderful Proprietary Rights and Confidential Information
Project Wonderful owns, or is the authorized licensee of, all right, title and interest, including all copyright, trademark, trade secret, patent and other proprietary rights in and to the Services, Advertising Platform and all associated software and technology ("Project Wonderful IP"). You may not or may not allow any third party to: (a) copy, modify, adapt or create a derivative work from the Project Wonderful IP; (b) reverse engineer, reverse assemble, or otherwise attempt to discover any source code from the Project Wonderful IP; or (c) sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Project Wonderful IP. You agree not to access the Services by any means other than through the Advertising Platform made available by Project Wonderful.
You acknowledge that certain technical or business information of Project Wonderful that You may access to as a result of Your use of the Services are considered proprietary and confidential to Project Wonderful ("Confidential Information"). Confidential Information includes Project Wonderful IP and information relating to Project Wonderful Publishers. You hereby agree to hold all such Confidential Information in strict confidence and to only use or disclose it to the extent it is required for Your use of the Services under the terms of the TOS or as authorized in writing by a duly authorized representative of Project Wonderful. Confidential Information does not include information that has become publicly known through no breach by You, or information that has been (i) independently developed without access to Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
10. Your Account
You agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Project Wonderful has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Project Wonderful has the right to suspend or terminate Your account and bar any and all current or future use of the Services.
You will receive a password and member ID upon completing the Services' registration process. You are responsible for maintaining the confidentiality of the password and member ID and are fully responsible for all activities that occur under Your account. You agree to: (i) immediately notify Project Wonderful of any unauthorized use of Your account or any other breach of security; and (ii) ensure that You exit from Your account at the end of each session. Project Wonderful is not liable for any loss or damage arising from your failure to comply with this Section 10. You acknowledge that Project Wonderful may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days, if any, that uploaded Advertising will be retained. You agree that Project Wonderful has no responsibility or liability for the deletion or failure to store any messages and other communications or other Advertising maintained or transmitted by the Services. You acknowledge that Project Wonderful reserves the right to close accounts that are inactive for more than six months or some other extended period of time as may be designated by Project Wonderful from time to time. You further acknowledge that Project Wonderful reserves the right to modify these general practices and limits from time to time.
You agree that Project Wonderful may access, preserve and disclose Your account information, and any Advertising, if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to among other things: (1) comply with legal process; (2) enforce the TOS; (3) respond to claims that any Advertising violates the rights of third parties; (4) respond to Your requests for customer service; or (5) protect the rights, property or personal safety of Project Wonderful, its users or the public.
11. Publishers, Third Party Content
You understand that all content, information, data, text or other materials available on Publisher websites ("Third Party Content"), are the sole responsibility of the Publisher or the person from whom such content originated. Project Wonderful does not guarantee the accuracy, completeness, or usefulness of any information about a Publisher which is made available on the Website or otherwise by Project Wonderful and Project Wonderful does not control, approve or endorse any Publisher or Third Party Content. You should rely on Your independent investigation of a Publisher before submitting Advertising for such Publisher's website and You agree to evaluate, and bear all risks associated with, the displaying of Your Advertising on a Publisher's website. You understand that by using the Services, Your Advertising may be displayed alongside or in association with Third Party Content that is offensive, illegal, indecent or objectionable. Under no circumstances will Project Wonderful be liable in any way for any Third Party Content.
12. Fees and Payment
You are responsible for all fees applicable to Advertising placed by You ("Advertising Fees"). Advertising Fees are based on the time and amount of your winning advertising bids as recorded in Your online account with Project Wonderful. You are liable for all Advertising Fees applicable to each of Your bids while it remains as the winning bid. Advertising Fees are payable directly to the applicable Publishers and Project Wonderful collects a commission on those Advertising Fees from the Publishers. Payments are non-refundable. You shall pay all charges in U.S. Dollars or in such other currency as may be agreed to in writing with Project Wonderful. Unless agreed to by Project Wonderful in writing, You shall pay all Advertising Fees via Your account balance.
Advertising Fees may include applicable taxes. You are responsible for paying all applicable taxes and government charges applicable to the Advertising Fees. Note that for Canadian Publishers, applicable federal and provincial sales tax will be applied to the Advertising Fees owed and collected from Your account. If You are a US resident, you hereby irrevocably release and forever discharge Project Wonderful and its Publishers from and against any claims you might have now or in the future in relation to any sales tax applied to the Advertising Fees.
Nothing in the TOS will be deemed to obligate Project Wonderful to extend credit to any party. You agree that any unclaimed funds credited to Your account do not earn interest and are not treated as currency. If there is no activity on Your account for a period of six months, we reserve the right to close Your account, at which point any unclaimed funds will revert to Project Wonderful. Project Wonderful will notify you in advance if Your account is close to being depleted of funds. If and when Your account is depleted of funds all Advertising will be immediately cancelled without any liability whatsoever to Project Wonderful.
13. Indemnities, Release
You agree to defend, indemnify and hold Project Wonderful and its Publishers, suppliers, licensors, directors, officers, employees, agents and other related parties, harmless from and against any and all liabilities, claims, costs and expenses, including without limitation reasonable attorneys' fees and expenses, in connection with any third party claim or demand arising from, related to, or in connection with (a) Your breach or violation of the TOS or (b) the Advertising or Linked Content. Further, you will assist and cooperate as fully as reasonably required by Project Wonderful in the defence of any such claim or demand.
You hereby irrevocably release Project Wonderful and its suppliers, licensors, directors, officers, employees, agents and other related parties (collectively "Releasees"), from and against any and all actions, causes of action, liabilities, claims, demands for damages, insurance proceeds, expenses, costs or loss, of any kind and nature whatsoever and howsoever arising, which You have ever had, may now have, or may hereafter have against the Releasees, or any one or more of them, that are in any way relating to any Publisher's website, including without limitation the nature or quality of any products, services or content on such Publisher's website.
14. DISCLAIMER AND LIMITATION OF LIABILITY
YOUR USE OF THE SERVICES AND ADVERTISING PLATFORM IS AT YOUR OWN RISK. THE SERVICES AND ADVERTISING PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND.
ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROJECT WONDERFUL MAKES NO REPRESENTATION OR WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (B) YOUR ADVERTISING WILL BE DELIVERED ON AN ACCURATE, TIMELY, OR CONTINUOUS BASIS; (C) ANY CONVERSION RATES, USER CLICK-THROUGHS, INTERNET TRAFFIC, OR OTHER COMMERCIAL RESULTS WILL BE OBTAINED THROUGH YOUR ADVERTISING; (D) THE TRANSMISSION OF INFORMATION TO OR FROM THE ADVERTISING PLATFORM WILL BE SECURE; (E) THE ADVERTISING PLATFORM WILL BE FREE OF ANY VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; (F) THE ADVERTISING PLATFORM WILL BE COMPATIBLE WITH YOUR COMPUTER OR SOFTWARE; (G) ANY INFORMATION ON PUBLISHERS SUCH AS TRAFFIC, SIZE OF AUDIENCE, OR USER DEMOGRAPHICS OR CHARACTERISTICS, WILL BE ACCURATE, TIMELY OR COMPLETE; OR (H) ANY PUBLISHER WEBSITE WILL BE CONTINUOUSLY DISPLAYING YOUR ADVERTISING OR GENERALLY AVAILABLE OR RESPONSIVE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) PROJECT WONDERFUL AND ITS PUBLISHERS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA, OR LOSS OR INTERRUPTION TO YOUR BUSINESS) WHETHER UNDER THEORY OF CONTRACT (INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH), TORT (INCLUDING WITHOUT LIMITATION STRICT LIABILITY OR NEGLIGENCE IN ANY DEGREE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (II) PROJECT WONDERFUL'S AGGREGATE LIABILITY FOR DIRECT DAMAGES IS LIMITED TO THE GREATER OF (1) TWENTY-FIVE PERCENT OF THE AGGREGATE ADVERTISING FEES PAID BY YOU DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION GIVING RISE TO THE LIABILITY AND (2) US $10.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to comply with all applicable laws regarding the transmission of technical data exported from Canada or the country in which you reside.
Except as otherwise expressly provided in the TOS, there shall be no third-party beneficiaries to the TOS.
Project Wonderful may provide You with notices, including those regarding changes to the TOS, by email, regular mail (to the address in Your account), or postings in Your account interface on the Advertising Platform. Notices are deemed received when sent (for email) or no more than five days after having been posted (for messages in Your account interface)
PROJECT WONDERFUL and other Project Wonderful marks, logos and product and service names are trademarks of Project Wonderful (the "Project Wonderful Marks"). Without Project Wonderful's prior permission, you agree not to display or use the Project Wonderful Marks in any manner.
Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
You shall comply with all applicable laws, statutes, rules of conduct, ordinances and regulations regarding your use of the Services and your bidding on, listing of, purchase of, and sale of any and all advertising space.
The TOS shall be governed solely by the laws of the Province of Ontario, Canada and the applicable federal laws of Canada, without regard to the conflicts of law provisions of any jurisdiction. You hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario in the City of Toronto in relation to all disputes arising from or related to the TOS or the Services.
The TOS, including the Guidelines, constitutes the entire agreement between You and Project Wonderful with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. In the event of any conflict between the TOS and the Guidelines, the TOS shall govern. You acknowledge that you are not relying on any statements or promises of Project Wonderful in entering into the TOS and signing up for the Services, and any conflicting or additional terms contained in any other documents or oral discussions are void.
Project Wonderful's failure to insist upon or enforce strict performance of any right or provision of the TOS shall not constitute, or be construed as, a waiver of any right or provision.
If any provision or part thereof, in these TOS is determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions, or parts thereof, contained herein.
You and Project Wonderful are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by the TOS or your use of the Services. You further acknowledge that any Publisher and Project Wonderful are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by the Services or any other terms of service.
You may not assign any of Your rights hereunder and any such attempt is void. Project Wonderful may assign this Agreement and its rights and obligations under this agreement without Your consent.
Any rights not expressly granted by the TOS are reserved to Project Wonderful.
In the event that the TOS or Services or any Advertising expires or is terminated, Project Wonderful shall not be obligated to return any materials to You.
The parties have expressly requested and required that the TOS and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s'y rapportent soient redigës en anglais.
Last update: July 1st, 2010.